AMERICAN  SCHOOL 

CAGOJLLINOIS 


UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


EDWARD  HARTON 


O.W.  SMITH 

LAW 


INSTRUCTION     PAPER 


PREPARED   BT 


WILLIAM  L.  BURDICK,  Ph.D.,  LL.B. 

PROFESSOR  OF  LAW,  UNIVERSITY  OF  KANSAS,  AND 

LECTURER  ON  MEDICAL  JURISPRUDENCE  IN  SCHOOL  OF  MEDICINE, 

UNIVERSITY  OF  KANSAS 


AMERICAN    SCHOOL    OP    CORRESPONDENCE 

M  | 

CHICAGO  ILLINOIS 

U.S.A. 


T 


COPYRIGHT  1912  BY 
AMERICAN  SCHOOL  OF  CORRESPONDENCE 


Entered  at  Stationers'  Hall,  London 
All  Rights  Reserved 


CONTENTS 


CHAPTER   I 

Definition  and  Scope  of  Subject  PAQB 

§    1.  Meaning  of  term. 1 

§    2.  Connected  with  what  questions 1 

§     3.  Questions  of  fact  and  evidence 2 

§    4.  Scope  of  present  article 2 

CHAPTER  II 

Proof  of  Death 

§    5.  Fact  of  death 3 

Signs,  Time,  and  Mode  of  Death 

§    6.  Changes  in  temperature 4 

§     7.  Rigor  mortis 4 

§     8.  Suggillation,  or  cadaveric  lividity 4 

§     9.  Putrefaction 5 

§  10.  Saponification  or  adipocere 6 

§  11.  Mode  of  death 7 

§  12.  Bloodstains 8 

§  13.  Microscopic  examination  of  hairs 11 

CHAPTER  III 

Toxicology 

§  14.  Definition '. 12 

§  15.  What  is  a  poison 12 

§  16.  Whether  quantity  is  test 13 

§  17.  How  administered 13 

§  18.  Classification  of  poisons 13 

§  19.  Local  and  remote  action  of  poisons 14 

§  20.  Symptoms  of  poisoning 15 

§  21.  Ptomaines 16 

§  22.  Post-mortem  examinations 17 

§  23.  Chemical  analysis 18 

§  24.  Other  examinations 18 

§  25.  Preparation  for  trial 18 

§  26.  Poisons  introduced  after  death 19 

§  27.  Masking  poisons 19 


CONTENTS 

CHAPTER  IV 

Legitimacy  PAGE 

§  28.  Questions  involved 20 

§  29.  Presumption  of  legitimacy 20 

§  30.  Period  of  gestation 20 

§  31.  Premature  birth 21 

§  32.  Viability 21 

§  33.  Child's  resemblance  to  reputed  father 22 

§  34.  Impotency 22 

CHAPTER   V 

Sexual  Crimes 

§  35.  Scope  of  inquiry 23 

§  36.  Rape 23 

§  37.  False  accusation 23 

§  38.  Remoteness  of  examination 23 

§  39.  Sodomy ... 24 

CHAPTER  VI 

Pregnancy 

§  40.  Legal  questions 25 

§  41.  Jury  of  matrons 25 

§  42.  Abortion 25 

CHAPTER  VII 

Infanticide 

§  43.  Criminal  causes  of  death 28 

§  44.  Accidental  causes  of  death 29 

CHAPTER  VIII 

Wounds 

§  45.  Legal  importance 30 

§  46.  Surgical  classification 30 

§  47.  Surgical  definitions 30 

§  48.  Legal  definition 31 

§  49.  Practical  hints 31 

CHAPTER  IX 

Questions  of  Identity 

§  50.  Mistakes  as  to  identity 32 

§  51.  Some  facts  of  vision 32 

§  52.  Identification  of  dead 33 

CHAPTER  X 

Survivorship 
§  53.  No  presumption  of  survival 34 


CONTENTS 

CHAPTER  XI 

'     Insanity  »AQ« 

§  54.  Importance  of  subject 35 

§  55.  Mental  irresponsibility 35 

§  56.  Technical  terms 36 

§  57.  Presumption  of  sanity 38 

§  58.  Legal  tests  of  insanity 38 

§  59.  Rule  as  to  delusions 40 

§  60.  Evidence  relating  to  insanity 42 

§  61.  Reading  from  medical  works 42 

§  62.  Insanity  at  trial 42 

§  63.  Civil  incapacity  of  insane 43 


MEDICAL  JURISPRUDENCE 


CHAPTER  I 
DEFINITION  AND  SCOPE  OF  SUBJECT 

§  1.  Meaning  of  Term.  Medical  jurisprudence,  other- 
wise known  as  forensic  medicine,  and  as  juridical  medi- 
cine, is  not,  properly  speaking,  a  system  of  jurisprudence 
at  all,  but  consists  in  the  application  of  facts,  popularly 
called  medical,  to  the  solution  of  certain  legal  questions. 
It  is  defined  as  "that  science  which  applies  the  principles 
and  practice  of  medicine  to  the  elucidation  and  settlement 
of  doubtful  questions  of  law."1 

There  is  no  department  of  human  knowledge  but  that 
may,  at  some  time,  be  necessarily  invoked  by  the  law  to 
furnish  information  as  to  facts,  in  order  that  truth  may 
be  established  and  justice  administered.  For  this  purpose 
the  medical  sciences  must  frequently  lend  their  aid;  and 
the  knowledge  of  certain  facts  of  anatomy,  physiology, 
materia  medica,  obstetrics,  surgery,  physics,  chemistry, 
bacteriology,  toxicology,  and  psychical  medicine  (the 
branch  of  medicine  relating  to  mental  diseases),  and  their 
relation  to  the  solution  of  certain  legal  problems,  consti- 
tutes what  is  termed  "medical  jurisprudence". 

§2.  Connected  with  What  Questions.  Medical  juris- 
prudence deals  with  such  questions  as  the  fact  and  causes 
of  death;  with  the  identification  of  bloodstains  and  the 
detection  of  poisons;  with  evidence  relating  to  sexual 
crimes,  such  as  rape  and  sodomy;  with  questions  relating 
to  legitimacy,  involving  facts  connected  with  the  period  of 
gestation  and  paternity;  with  facts  relating  to  impotence, 
sterility,  pregnancy,  abortion,  and  infanticide;  with  ques- 

i  Bouvier  's  Law  Diet. 

Copyright,  1912,  ty  American  School  of  Correspondence.  1 


2  MEDICAL  JURISPRUDENCE 

tions  of  identity  of  persons,  survivorship,  and  certain 
phases  of  life  insurance;  with  wounds,  personal  injuries, 
and  feigned  diseases;  and  with  questions  of  mental 
unsoundness  and  insanity.  This  enumeration  of  matters 
does  not  exhaust  the  list,  although  it  comprises  the  most 
important  branches  of  the  subject. 

§  3.  Questions  of  Fact  and  Evidence.  It  is  obvious  that 
medical  jurisprudence  deals,  therefore,  with  matters  of  fact, 
or  of  evidence.  From  his  knowledge  of  scientific  facts 
relating  to  the  foregoing  questions,  the  lawyer  must  form 
his  opinions  and  advise  his  clients.  In. connection  with  the 
trial  of  causes,  the  facts  must  be  testified  to  by  experts  or 
persons  learned  and  skilled  in  the  medical  sciences. 

§  4.  Scope  of  Present  Article.  Medical  jurisprudence  is 
a  vast  subject,  and  volumes  have  been  written  upon  it. 
Anything  like  a  full  discussion  of  any  of  the  topics  referred 
to  in  this  article  is  impossible  owing  to  the  necessary  limi- 
tation of  space.  However,  it  is  the  writer's  desire  to  pre- 
sent in  a  concise  way  the  important  outlines  of  the  subject 
in  the  hope  that  the  reader's  or  practitioner's  attention 
may  be  directed  profitably  to  the  line  of  investigation  to  be 
pursued  when  he  is  confronted  with  legal  questions  requir- 
ing evidence  upon  such  matters. 

The  reader  should  ever  keep  in  mind  the  important  fact 
that  the  sciences  that  contribute  to  our  knowledge  of  medical 
jurisprudence  are  constantly  progressing,  and  that  theories 
of  even  a  few  years  ago  may  require  modification  in  the 
light  of  modern  discoveries.  This  is  especially  true  in 
toxicology. 


CHAPTER  II 
PROOF  OF  DEATH 

§  5.  Fact  of  Death.  Although  the  fact  of  death  may  be 
proved  in  civil  cases  by  circumstantial  evidence,1  and  like- 
wise even  in  homicide  cases,  where  the  corpus  delicti  (phys- 
ical evidence  of  the  crime)  may  be  established  by  other  than 
direct  proof,2  nevertheless,  the  best  evidence  as  to  death, 
especially  in  criminal  cases,  is  the  finding  and  inspection 
of  the  dead  body.3 

SIGNS,  TIME,  AND  MODE  OF  DEATH 

In  connection  with  the  legal  investigation  of  the  death  of 
persons,  the  facts  upon  which  testimony  as  to  the  death 
is  based  are  a  proper  subject  of  inquiry,  and  they  become 
of  great  importance  when  the  case  hinges  upon  the  time  of 
death.4  Physiologists  distinguish  between  molecular  and 
somatic  death,  the  former  meaning  the  death  of  any  tissue 
or  part  of  the  body,  the  latter  meaning  death  of  the  whole 
body,  that  is,  death  in  the  popular  and  legal  sense.  Death 
is  the  termination  of  life  and  the  most  prominent  signs  of 
such  termination  are  the  complete  and  continuous  cessation 
of  the  heart's  action;  entire  cessation  of  circulation  and 
respiration;  changes  in  the  eye,  in  that  it  no  longer  con- 
tracts or  dilates,  as  shown  by  the  fact  that  the  pupil  no 
longer  responds  to  the  action  of  a  bright  light  when  focused 
upon  it  by  a  lens — the  test  of  "oblique  illumination", 
though  in  some  diseases  of  the  brain,  the  eye  shows  the 
same  insensibility  to  light;  changes  in  the  temperature  of 
the  body,  which  is  sometimes  a  valuable  means  for  deter- 

i  John  Hancock  Mut.  Life  Ins.  Co.  v.  Moore,  34  Mich.  41. 

zWinslow  v.  State,  76  Ala.  42;  Cavanass  v.  State,  43  Ark.  331;  Campbell  v. 
People,  159  HI.  9,  42  N.  E.  123,  50  Am.  St.  Rep.  134;  State  v.  Winner,  17 
Kan.  298. 

s  U.  S.  v.  Williams,  28  Fed.  Cas.  No.  16707. 

*  Evans  v.  People,  49  N.  Y.  86,  90. 

3 


4  MEDICAL  JTJEISPKUDENCE 

mining  how  recently  death  occurred ;  rigor  mortis,  or  cada- 
veric rigidity;  and  putrefaction. 

§6.  Changes  in  Temperature.  As  stated  above,  the 
degree  of  temperature  shown  by  the  body  is,  at  times, 
important  evidence  of  the  time  elapsing  since  death.  The 
normal  living  temperature  is  about  98°  F.  In  from  two 
to  four  hours  after  death  it  averages  96.9°.  In  from 
eight  to  twelve  hours,  it  usually  falls  to  77.9°,  and  continues 
to  cool  until  it  attains  the  temperature  of  the  surrounding 
medium.  Casper  says  that  most  bodies  are  quite  cold  in 
from  eight  to  twelve  hours,  and  in  this  statement  Woodman 
and  Tidy  agree.5  Dr.  Eeese  places  the  average  at  from  fif- 
teen to  twenty-four  hours.6  It  is  not,  however,  a  sudden  fall 
of  temperature  that  indicates  death,  nor  the  absolute  tem- 
perature, but  a  steady,  progressive,  continuous  cooling. 
Moreover,  in  death  by  some  forms  of  disease,  as  cholera, 
yellow  fever,  smallpox,  and  lockjaw  (tetanus),  the  tempera- 
ture actually  rises  after  death  has  taken  place. 

§  7.  Rigor  Mortis.  By  rigor  mortis,  otherwise  known 
as  cadaveric  rigidity,  is  meant  the  stiffening  of  the  muscles. 
The  time  when  this  change  sets  in  and  the  period  of  its 
duration  varies  greatly.  It  may  begin  from  a  few  minutes 
to  eighteen  or  twenty  hours  after  death.  It  may  last  only 
a  few  minutes  or  may  continue  for  weeks.  It  usually 
begins,  however,  in  from  three  to  six  hours  after  death, 
the  average  duration  being  twenty-four  to  forty-eight  hours. 
Rigor  mortis  may  be  simulated  by  catalepsy,  but  in  such 
cases  there  will  be  some  evidence  of  life. 

§  8.  Suggillation,  or  Cadaveric  Lividity.  A  few  hours 
after  death,  generally  from  three  to  ten  hours,  the  blood  of 
the  body  settles  by  gravitation  in  the  capillaries  of  the 
dependent  parts  of  the  body,  producing  livid,  or  purple, 
or  black  and  blue  patches  upon  the  skin.  This  change  is 
known  as  suggillation  (from  the  Latin  suggillare,  to  beat 
black  and  blue),  and  is  popularly  referred  to  as  ''death- 
spots".  These  changes  in  color  may  be  mistaken  by  the 

B  W.  &  T.,  For.  Med.  &  Tox.  50. 
«  Eeese,  Med.  Juris.  33. 


MEDICAL  JURISPRUDENCE  1 

inexperienced  for  bruises  (ecchymosis),  the  inference  being 
that  they  were  caused  by  blows  of  violence  upon  the  body 
before  death.  A  simple  test  reveals,  however,  the  true 
nature  of  these  patches.  If  a  scalpel  is  drawn  through  a 
suggillation  no  blood  will  flow,  while  in  case  of  a  bruise 
such  a  cutting  of  the  tissue  will  be  followed  either  by  some 
flow  of  blood  or  traces  of  blood-clots  will  be  observed. 

§  9.  Putrefaction.  The  most  positive  sign  of  death  is 
putrefaction.  As  a  rule  this  change  does  not  take  place  till 
rigor  mortis  passes,  yet  it  greatly  varies  in  its  commence- 
ment and  in  its  progress  in  different  bodies.  Conditions, 
moreover,  of  atmospheric  air,  moisture,  and  warmth  greatly 
influence  the  question.  Dry  air,  such,  for  example,  as  that 
of  an  arid  desert  retards  putrefaction  and  causes  the  fluids 
of  the  body  to  evaporate  and  the  flesh  to  shrivel.  Bodies 
buried  in  hermetically-sealed  coffins  may  be  preserved  from 
decay  for  many  years.  Bodies  lying  in  snow  or  ice  do  not 
putrefy,  and  if  a  body  with  evidences  of  putrefaction  upon 
it  is  found  in  snow  or  ice,  it  may  be  concluded  with  cer- 
tainty that  the  victim  did  not  perish  from  the  cold,  but  was 
a  putrefying  corpse  before  the  ice  was  formed  around  him 
or  before  his  body  was  deposited  in  that  place.7  Moisture 
hastens  the  progress  of  decay,  and  for  this  reason  dead 
bodies  taken  from  water  decompose  very  rapidly.  The 
progress  of  putrefaction  is  also  influenced  by  the  age  of  the 
deceased,  the  condition  of  the  body,  and  the  kind  of  death. 

Casper  says  that  his  experience  leads  him  to  conclude 
that  the  following  proportion  is  not  far  from  the  exact 
truth : 

"Three  bodies,  other  things  being  equal,  will  exhibit 
nearly  the  same  degree  of  putrescence ;  of  which  bodies  A 
shall  have  been  lying  in  the  open  field  for  one  month,  B 
in  the  water  for  two  months,  and  C  eight  months  buried  in 
a  coffin  in  the  usual  manner.  Any  very  important  error 
will  be  avoided  by  attending  to  this  ratio,  with  the  requi- 
site attention  to  the  modifying  circumstances  involved  in 
each  individual  case."8 

i  Casper,  For.  Med.,  Vol.  2,  p.  277. 
8  Vol.  1,  p.  37,  Syd.  Soc.  (translation). 


Chronological  Order  of  Putrefaction.  The  first  usual 
sign  of  putrefaction,  the  greenish  color  of  the  abdomen, 
generally  takes  place  in  from  twenty-four  to  seventy-two 
hours.  After  three  to  five  days  from  death  this  discolora- 
tion has  spread  over  the  entire  abdomen,  and  patches  of 
green  appear  on  other  parts  of  the  body.  In  about  eight 
or  ten  days,  the  discoloration  has  become  darker  and  more 
generally  spread  over  the  body.  In  fourteen  to  twenty 
days,  the  hues  of  putrescence  have  spread  over  the  entire 
body  which  is  now  bright,  frog  green  and  blood-red  brown. 
In  from  four  to  six  months,  or  sooner  in  bodies  that  have 
lain  in  warm  and  moist  media,  colliquative  putrefaction 
commences,  all  the  soft  parts  have  commenced  to  break 
down  into  soft  pulp,  or  have  vanished,  leaving  entire  bones 
bare  and  exposed.  No  trace  of  a  physiognomy  is  any  longer 
discernible. 

The  internal  organs  never,  under  any  circumstances,  yield 
to  putrefaction  in  the  same  period ;  consequently,  the  order 
in  which  these  organs  undergo  putrefaction  affords  a  surer 
means  of  determining  the  probable  period  of  death  than  the 
stages  of  putrefaction  on  the  surface  of  the  body.  The 
organ  first  to  putrefy  is  the  trachea,  succeeded  by  the  fol- 
lowing order:  the  brain  of  new-born  children,  stomach, 
intestines,  spleen,  omentum  and  mesentery,  liver,  brain  of 
adult,  heart,  lungs  (sometimes  earlier  than  the  heart),  kid- 
neys, urinary  bladder,  gullet,  pancreas,  diaphragm,  larger 
blood-vessels,  and  the  uterus.  The  uterus  is  the  last  organ 
of  all  to  putrefy,  being  known  to  retain  its  identity  for 
seven  months  after  death,  which  is  a  very  important  factor 
in  determining,  by  post-mortem  examination,  the  fact  of 
pregnancy. 

§  10.  Saponification  or  Adipocere.  When  a  dead  body 
has  been  buried  in  wet  or  very  moist  soil,  or  has  lain  long 
in  the  water,  the  tissues  instead  of  undergoing  putrefac- 
tion become  changed  into  substance  called  adipocere  (from 
Latin  adeps,  fat,  and  cera,  wax).  The  fatty  acids  of  the 
body  combine  with  the  ammonia  generated  by  decay,  form- 
ing an  ammoniacal  soap;  hence,  the  synonymous  name  of 


MEDICAL  JURISPRUDENCE  7 

saponification  is  given  to  this  post-mortem  change.  The 
fact  of  saponification  is  important,  at  times,  when  bodies 
are  found  in  the  water,  for  the  determination  of  the  prob- 
able time  the  body  has  been  in  the  water.  Some  authorities 
say  that  a  body  may  remain  in  the  water  a  year  before  its 
conversion  into  adipocere. 

§  11.  Mode  of  Death.  One  of  the  most  important  ques- 
tions presented  to  the  medical  jurist  is  the  mode  or  cause 
of  death.  The  limits  of  this  article  permit,  however,  only 
certain  hints  in  connection  with  such  investigations. 

In  death  from  suffocation,  strangulation,  hanging,  and 
drowning,  life  is  destroyed,  usually,  by  apncea  (asphyxia). 
This  means  that  death  begins  at  the  lungs,  the  air — that  is, 
the  oxygen — being  excluded  from  these  organs.  In  all  cases 
of  mysterious  death  by  violence,  the  surrounding  evidence 
should  be  carefully  considered.  Were  there  evidences  of  a 
struggle?  What  was  the  external  appearance  of  the  body? 
Was  a  post-mortem  examination  made? 

Drowning.  In  supposed  death  by  drowning  the  body 
should  be  examined  for  marks  of  violence  to  determine 
whether  wounds  were  inflicted,  or  rape  committed,  in  case 
of  a  female.  Death  does  not  always  take  place  in  the 
same  way.  The  victim  may  have  been  intoxicated  and  may 
have  struck  upon  a  rock  when  falling  into  shallow  water. 
Also,  the  body  may  have  been  dead  when  thrown  into  or 
placed  in  the  water.  In  some  cases  an  examination  for 
poison  may  be  suggested.  The  probable  time  the  body  has 
been  in  the  water  may  also  be  important.  Moreover,  it 
should  be  borne  in  mind  that  it  is  not  necessary  in  cases  of 
drowning  that  the  whole  body  should  have  been  submerged. 
Many  instances  have  occurred  where  very  young  children, 
epileptics,  and  drunken  persons  have  fallen  into  small  pools 
or  streams,  the  mouth  and  nose  alone  being  immersed,  and 
have  thus  met  death  by  drowning. 

Hanging.  While  in  a  mere  suspension  of  the  body  apno3a 
is  the  usual  cause  of  death,  yet  death  may  result  from 
apoplexy,  or  from  mixed  causes.  The  place,  and  the  condi- 
tion of  the  body,  should  be  carefully  examined  for  evidence 


8  MEDICAL  JTJEISPKTJDENCE 

of  suicide  or  the  contrary.  It  is  also  possible  that  the  body 
was  dead  before  it  was  suspended. 

Strangulation.  In  death  by  strangling,  evidence  of  a 
ligature  around  the  neck,  or  of  direct  pressure  of  hands  and 
fingers  upon  the  throat,  should  be  obtained. 

Suffocation.  Investigations  into  death  by  suffocation  are 
more  frequently,  perhaps,  connected  with  the  death  of 
infants  than  with  any  other  class,  and  the  utmost  care 
should  be  taken  by  medical  examiners  and  others  before 
venturing  an  opinion  as  to  homicidal  death,  since  there  are 
numerous  instances  of  accidental  death  by  suffocation.  For 
example,  an  infant  may  have  been  too  closely  wrapped  with 
clothing,  or  may  have  been  lain  upon  in  bed  by  a  drunken 
person.  The  cases  of  suicide  by  suffocation,  however,  are 
very  rare.9 

§  12.  Bloodstains.  The  examination  of  bloodstains,  es- 
pecially in  connection  with  criminal  causes,  occupies  a 
very  important  field  in  the  domain  of  medical  jurispru- 
dence. When  stains  or  spots  are  found  upon  the  clothing 
or  other  articles  of  a  suspected  person,  the  question  whether 
such  stains  are  those  of  blood  may  become  vital  in  the  chain 
of  evidence. 

Bloodstains  may  be  determined  in  various  ways.  They 
may  be  identified  by  chemical  tests,  by  the  microscope,  by 
the  spectroscope,  and  by  the  biological,  or  serum,  test. 
Chemical  tests  are  made  by  noting  the  reaction  of  certain 
chemical  reagents  on  the  peculiar  coloring-matter  (haemo- 
globin) of  the  blood,  either  as  certain  crystals  (hemin  crys- 
tals) may  be  formed,  or  characteristic  precipitates  pro- 
duced. The  chemical  tests  will  answer  the  question  whether 
the  suspected  stains  are  composed  of  blood  or  not. 

Microscopic  Tests.  Human  bloodstains,  however,  may 
be  distinguished  from  the  bloodstains  made  by  other  ani- 
mals. The  constituents  of  the  blood  that  are  of  practical 
medico-legal  value  are  the  red  corpuscles  or  cells.  These 

»  Casper,  Vol.  2,  123,  130,  134;  Reese,  Med.  Juris.,  143;  W.  &  S.,  Vol.  3,  p. 
336  et  seq.  For  a  review  of  the  medical  testimony  in  a  trial  for  murder  by 
suffocation,  resulting  in  an  acquittal,  see  Wh.  &  St.,  Vol.  3,  p.  303. 


MEDICAL  JURISPRUDENCE  ft 

are  the  cells  that  contain  the  coloring  matter,  the  haemo- 
globin. By  means  of  the  microscope  vast  myriads  of  these 
little  bodies  may  be  seen  moving  in  the  fluid,  and  with  the 
use  of  very  high  magnifying  powers,  usually  from  1,000  to 
1,500  diameters,  these  red  corpuscles  may  be  carefully  meas- 
ured and  in  this  way  their  identification  with  human  blood 
determined.  The  test  depends  upon  the  following  facts. 
The  red  corpuscles  of  mammals  are  circular  and  have  no 
nucleus.  The  corpuscles  of  birds  and  fishes  are  oval,  larger 
in  size  than  the  corpuscles  of  mammals,  and  have  a  nucleus. 
Whether  the  blood  is  mammalian  or  that  of  a  bird  or  of  a 
fish,  is  not,  therefore,  difficult  to  determine. 

Among  the  mammals,  the  corpuscles  of  the  horse,  cow, 
cat,  pig,  sheep,  and  goat  are  noticeably  smaller  than  human 
corpuscles.  The  dog  and  rabbit,  however,  have  corpuscles 
that  very  closely  approach  in  size  to  those  of  man,  and  in 
some  cases  it  may  be  very  difficult,  if  not  impossible,  to 
identify  positively  the  blood  corpuscles  as  human.  Speak- 
ing of  the  microscopic  test,  a  recognized  authority  says : 

"Under  favorable  circumstances,  it  can  always  be  deter- 
mined whether  the  blood  is  mammalian  or  oviparous,  and 
if  the  blood  is  mammalian,  and  the  cells  have  an  average 
diameter  of  between  1/3300  and  1/3100  of  an  inch,  the 
blood  is  not  that  of  a  cat,  goat,  pig,  sheep,  horse,  or  ox,  but 
may  be  the  blood  of  a  dog,  guinea-pig,  rabbit,  or  man. 
Most  experts  agree,  however,  that  one  is  not  justified  in 
saying  that  the  blood  is  human  blood."  10 

In  the  human  species  the  average  diameter  of  the  red 
corpuscles  is  1/3200  of  an  inch.  This  measurement  is  not, 
however,  a  fixed  constant,  and  variations  in  size  are  found 
from  1/2800  of  an  inch  to  1/4000  of  an  inch. 

In  determining  the  size  of  the  corpuscles,  a  skilled  opera- 
tor measures,  with  a  micrometer  attachment  to  the  micro- 
scope, a  large  number  of  the  observed  corpuscles  and  then 
takes  their  average  size. 

Spectroscopic  Test.    The  fact  that  blood  is  present  may 

10  Wh.  &  St.,  Vol.  2,  p.  696. 


10  MEDICAL  JURISPRUDENCE 

also  be  proven  by  the  spectroscope.  The  principle  of  the 
spectroscopic  test  depends  upon  the  fact  that  different  solu- 
tions absorb  different  parts  of  the  spectrum,  and  produce 
certain  dark  lines,  known  as  "absorption  lines",  in  the  spec- 
trum band.  If  the  solution  containing  the  suspected  blood 
is  placed  in  front  of  the  slit  of  the  spectroscope  and  the 
spectrum  then  examined,  the  dark  lines,  if  the  solution  con- 
tains hemoglobin,  the  coloring-matter  of  blood,  will  be 
found  in  certain  fixed  places,  no  other  substance  giving 
exactly  the  same  result.  A  skilled  operator  is  required  to 
determine  successfully  this  test,  and  while  the  test  proves 
the  presence  of  blood,  it  throws  no  light  upon  the  question 
whether  it  is  human  blood  or  that  of  some  other  animal. 

Serum  Test.  During  the  past  few  years,  discoveries  in 
connection  with  the  investigation  of  certain  anti-toxins  have 
furnished  a  most  valuable  test  for  human  blood  by  means 
of  what  is  known  as  the  biological  or  serum  test.  It  has 
been  found  that  if  a  small  quantity  of  any  kind  of  blood  or 
blood-serum  is  injected  into  the  body  of  another  animal 
(a  rabbit  is  generally  used),  and  after  a  time  the  animal 
so  injected  is  bled,  and  the  blood  allowed  to  coagulate,  the 
serum  thus  obtained  contains  a  constituent  called  "pre- 
cipitin",  which  will  produce  a  precipitate  in  the  diluted 
blood  or  blood-serum  of  an  animal  of  the  same  species  as 
the  one  with  which  the  animal  (the  rabbit)  was  inoculated. 
It  will  not,  however,  precipitate  the  blood-serum  of  any 
other  kind  of  animal  unless  it  be  closely  allied  in  genus. 
Thus,  if  human  blood-serum  was  used  to  inject  the  rabbit, 
the  resulting  serum  will  precipitate  nothing  but  human 
blood.  Consequently,  if  an  unknown  blood  solution  is  used, 
and  the  precipitin  thus  procured  precipitates  blood  known 
to  be  human,  the  test  proves  the  originally  unknown  solu- 
tion to  contain  human  blood.  This  test  is  very  delicate, 
and  can  be  used  for  fresh  blood  or  for  old  and  dried  stains. 

The  nature  and  condition  of  the  blood  should  also  be 
noted.  The  fact  of  its  coagulation  may  be  in  some  instances 
a  valuable  item,  since  the  time  required  for  the  coagulation 
of  human  blood  differs  from  the  time  required  for  the  blood 


MEDICAL  JURISPRUDENCE  11 

of  other  animals  to  coagulate.  Certain  conditions,  moreover, 
retard  or  prevent  coagulation  as,  for  example,  exposure  to 
cold.  Whether  or  not  the  blood  is  thoroughly  dry  may 
also  be  important  for  showing  the  time  it  has  been  exposed 
to  the  air.  Generally  from  one  to  two  hours  is  required 
for  a  single  drop  of  blood  to  dry.11 

Additional  Hints  as  to  Bloodstains.  In  many  cases, 
important  evidence  may  be  obtained,  where  blood  has  spat- 
tered the  surrounding  walls  or  other  surfaces,  by  observing 
the  shape  and  form  of  the  stains  which  will  often  serve  to 
show  from  what  direction  the  blood  came.  Contact  with 
oily  or  greasy  substances  will  delay  the  coagulation  of 
blood.  If  blood  is  cooled  rapidly  to  the  freezing  point, 
coagulation  will  not  take  place  for  an  hour  or  so.  Usually, 
the  coagulation  of  human  blood  is  complete  in  from  nine 
to  ten  minutes.12 

§  13.  Microscopic  Examination  of  Hairs.  The  micro- 
scopic examination  of  hairs  may  furnish  incriminating  evi- 
dence. An  illustrative  case  is  that  of  a  murder  which  was 
proven  from  the  fact  that  upon  a  knife-blade  were  found 
the  hairs  of  a  squirrel,  which  was  connected  with  the  fact 
that  the  child  victim  of  the  homicide,  whose  throat  had 
been  cut,  had  worn  about  her  neck,  at  the  time,  a  tippet  of 
squirrel's  fur  over  which  the  knife  must  have  passed.13 

Not  only  may  human  hairs  be  distinguished  from  the  hairs 
of  many  other  animals,  but  the  hair  of  a  man  may  often 
be  distinguished  from  the  hair  of  a  woman,  the  latter  being, 
as  a  rule,  smaller  in  diameter.  The  part  of  the  body  from 
which  the  examined  hairs  came  may  be  detected  likewise, 
at  times,  by  their  characteristic  appearances  and  by  their 
diameters.  Human  hairs  cannot,  however,  be  identified  as 
the  hair  of  a  particular  individual. 

The  domestic  animals  whose  hairs  approach  most  nearly 
in  structure  those  from  man  are  the  dog  and  cow;  yet  the 
distinction  is  rarely  difficult  to  one  familiar  with  them  all.14 

11  P.  &  H.,  Vol.  2,  p.  725.  is  Wh.  &  St.,  Vol.  3,  p.  244. 

12  Idem,  724.  14  P.  &  H.,  Vol.  2,  p.  766. 


CHAPTER  in 
TOXICOLOGY 

§  14.  Definition.  Toxicology  is  the  science  that  treats 
of  poisons,  their  origin,  properties,  and  action  on  the  sys- 
tem, the  treatment  of  their  noxious  effects,  and  their  detec- 
tion by  chemical  or  other  means. 

§  15.  What  Is  a  Poison.  An  exact  definition  of  a  "  poi- 
son" is  exceedingly  difficult,  and  when  definitions  are 
attempted  they  often  prove  misleading,  and  are  also  often 
scientifically  criticizable.  Dr.  Taylor  defines  a  poison  as 
follows : 

"A  poison  is  a  subsance  which,  when  absorbed  into  the 
blood,  is  capable  of  seriously  affecting  health  or  destroy- 
ing life,  and  this  is  its  usual  effect  upon  the  healthy  body.  "l 

Some  poisons,  however,  like  corrosive  acids  and  alkalies, 
cause  deleterious  results  without  being  absorbed  into  the 
blood,  and  to  meet  this  objection  the  following  definition 
has  been  given : 

"A  poison  is  anything  which  otherwise  than  by  the 
agency  of  heat  or  electricity  is  capable  of  destroying  life, 
either  by  chemical  action  on  the  tissues  of  the  living  body, 
or  by  physiological  action  from  absorption  into  the  living 
system." 

Other  authorities  object  to  all  definitions,  and  hold  that 
the  use  of  definite  words  or  phrases  to  restrict  or  comprise 
a  schedule  of  poisons,  especially  when  we  consider  the 
constantly  advancing  progress  of  the  science  of  toxicology, 
is  unadvisable  as  a  medico-legal  requirement.  To  avoid 
quibbling  over  the  technical  definition  of  a  poison,  some  of 
the  statutes  provide,  in  the  criminal  law,  against  the  admin- 
istering of  poison,  "or  other  noxious  or  destructible  thing". 

i  Taylor  on  Poisons  18. 
12 


MEDICAL  JURISPRUDENCE  13 

§16.  Whether  Quantity  Is  Test.  The  quantity  of  the 
substance  required  to  destroy  life  is  not  the  test  of  a  poison. 
Half  a  grain  of  strychnine  may  cause  death,  while  sixty 
grains  of  oxalic  acid  are  required  to  occasion  fatal  results. 
In  a  general  sense,  however,  a  substance  to  be  regarded 
as  a  poison  must  be  capable  of  producing  harmful  results 
in  doses  of  about  sixty  grains,  if  a  solid,  or  a  teaspoonful, 
if  a  liquid.2 

§  17.  How  Administered.  A  poison  may  be  adminis- 
tered in  various  ways.  It  may  be  administered  by  another, 
or  taken  personally  by  the  victim.  It  may  be  swallowed, 
hypodermically  injected,  applied  to  the  nose  or  lungs  (as 
inhalation  of  poisonous  vapors),  ear,  vagina,  rectum,  or 
even  to  the  skin.  The  sound  skin  may  absorb  arsenic,  cor- 
rosive sublimate,  and  opium.  If  applied  to  the  broken 
skin  the  absorption  is  much  more  rapid. 

§18.  Classification  of  Poisons.  Physiological.  The 
classification  of  poisons  is  attended  with  much  difficulty, 
and  the  authorities  are  not  agreed  as  to  the  system  to  be 
followed.  It  should  also  be  obvious  that  attempts  to 
classify  poisons  must  necessarily  vary  as  scientific  knowl- 
edge increases.  It  has  been  the  usual  practice  to  classify 
poisons  upon  the  basis  of  their  physiological  action,  and  to 
refer  to  them  as  corrosives,  irritants,  and  neurotics.  The 
action  of  a  poison  is  physiological  or  chemical,  but  not 
mechanical.  Noxious  things  that  act  mechanically,  such  as 
powdered  glass,  pins,  needles,  etc.,  although  they  may  be 
administered  internally,  and  although  they  may  destroy 
life,  are  not  poisons  but  are  properly  classed  as  "destruc- 
tive things". 

Corrosive  poisons  act  locally,  and  are  characterized  by 
destruction  of  the  tissues  with  which  they  come  in  contact. 
Irritants  produce  an  irritant  action  upon  the  mucous  coat 
of  the  alimentary  canal  (gastro-intestinal  irritation).  Some 
irritants,  however,  are  also  corrosives  by  reason  of  their 
destructive  chemical  action  upon  the  tissues.  Neurotics 
affect  the  nerve  centers,  the  brain  and  spinal  cord,  pro- 

2  P.  &  H.,  Vol.  2,  p.  301. 


14 


ducing  coma,  convulsions,  disordered  circulation,  and 
respiration.  The  classification  of  poisons  by  these  physio- 
logical actions  may  be  shown  in  part  by  the  following 
tabulation : 

CORROSIVES:  Strong  acids  and  alkalies. 
IRRITANTS.-     Arsenic,  antimony,  mercury,  phosphorus,  bro- 
mine, iodine,  cantharides,  savin,  croton  oil. 
NEUROTICS:    Alcohol,    chloral,    chloroform,    opium,    bella- 
donna, aconite,  strychnine,  carbon  monoxide, 
hydrocyanic  acid,  carbolic  acid. 

Chemical.  Instead  of  classifying  poisons  by  their  phys- 
iological action,  a  classification  based  upon  their  chemical 
and  physical  properties  is  preferred  by  some  toxicologists.3 
This  system  of  classification  is  illustrated  by  the  following 
partial  outlines : 

GASEOUS: 


INORGANIC. 


ORGANIC. 


Carbon  dioxide,  carbon  monoxide,  sulphide  of 
hydrogen,  nitrous  oxide. 

Sulphuric,  hydrochloric,  and  nitric  acids,  an- 
timony, arsenic,  phosphorus,-  mercury,  bis- 
muth, lead  and  its  salts,  salts  of  copper. 

(1)  Non-Alkaloidal: 

Acetic  acid,  carbolic  acid,  hydrocyanic 
acid,  oxalic  acid,  chloral  hydrate,  wood 
alcohol,  chloroform,  croton  oil,  digitalis, 
ergot,  savin,  tansy. 

(2)  Alkaloidal: 

Aconite,  atropine  (belladonna),  cocaine, 
nicotine,  strychnine,  brucine,  opium  and 
its  alkaloids  including  morphine. 

Ptomaines,  toxines,  leucomaines. 
§19.  Local  and  Remote  Action  of  Poisons.  Experts 
speak  of  the  local  and  remote  action  of  poisons.  By  local 
action  is  meant  direct  action  upon  that  local  part  of  the 
body  to  which  the  poison  is  applied,  as  corrosion  of  the 
stomach  and  bowels  produced  by  strong  acids  and  caustic 

a  W.  &  St.,  Vol.  2,  p.  105  et  seq. 


FOOD 
POISONING 


MEDICAL  JURISPRUDENCE  15 

alkalies.  Arsenic  produces  a  local  inflammation.  Chloro- 
form causes  local  action  on  the  nerves,  and  belladonna  on 
the  muscles. 

Eemote  action  extends  to  organs  distant  from  the  point 
of  application.  The  usual  symptoms  of  poisoning  are  pro- 
duced, generally,  by  remote  action.  Some  poisons  remotely 
affect  the  heart  (as  digitalis),  some  the  organs  of  respira- 
tion (as  hydrocyanic  acid),  some  the  brain  (as  opium,  mor- 
phine), and  some  the  spinal  cord  (strychnia). 

§20.  Symptoms  of  Poisoning.  In  the  medico-legal  in- 
vestigation of  cases  of  poisoning  the  symptoms  are  impor- 
tant in  determining  the  nature  of  the  poison.  Although 
these  symptoms  greatly  vary,  nevertheless,  many  are  speci- 
fically characteristic.  Corrosive  poisons,  such  as  strong 
mineral  acids,  caustic  alkalies,  strong  solutions  of  oxalic 
acid,  corrosive  sublimate,  chlorides  of  antimony,  etc.,  pro- 
duce burning  pains  in  the  mouth,  throat,  and  stomach. 
Vomiting  and  purging  follow,  and  blood  is  discharged,  pure 
or  mixed.  In  case  of  corrosive  poisons  the  symptoms  are 
usually  immediate,  while  in  the  case  of  irritant  poisons 
there  may  be  considerable  delay  in  their  appearance.  The 
insolubility  of  the  poison  in  water  or  other  liquids  will 
retard  the  action.  After  a  time,  however,  there  is  intense 
pain  and  dryness  of  the  throat,  great  thirst,  nausea,  vomit- 
ing, pain  in  the  abdomen,  purging,  bloody  discharges,  cold 
sweats,  and  pain  in  the  region  of  the  kidneys.  The  sufferer 
is  generally  sensible  to  the  last. 

In  opium  poisoning  the  usual  symptoms  are  giddiness, 
headache,  protrusion  of  the  eyes,  contraction  of  the  pupils, 
noises  in  the  ears,  drowsiness,  insensibility.  Vomiting  is 
rare. 

The  symptoms  generally  associated  with  poisoning  by 
belladonna,  stramonium,  or  hyocyamus  are  delirium,  thirst, 
great  dryness  of  the  throat,  and  dilated  pupils.  Death  is 
generally  preceded  by  coma  (stupor),  rarely  by  convulsions. 

The  characteristic  symptoms  of  strychnine  are  violent 
and  rigid  convulsions,  closely  locked  jaws,  great  physical 
suffering.  In  the  case  of  hydrocyanic  or  prussic  acid  death 


16  MEDICAL  JUEISPKUDENCE 

is  caused  quickly  by  shock  and  the  action  is  too  rapid  for 
characteristic  symptoms. 

Symptoms  Simulated  by  Disease.  It  is  always  impor- 
tant to  bear  in  mind  that  there  are  certain  diseases  whose 
symptoms  may  be  mistaken  for  those  of  poisoning.  Thus, 
the  symptoms  of  gastro-enteritis  complicated  with  acute 
nephritis  closely  resemble  the  symptoms  of  poisoning  by 
irritants,  as  do  also  cholera  morbus,  peritonitis,  and  ulcera- 
tion  of  the  stomach.  Narcotic  poisoning  may  be  simu- 
lated by  apoplexy,  epilepsy,  tetanus,  and  inflammation  of 
the  brain.  The  cautious  investigator  will  make  careful 
inquiry  as  to  the  existence  of  such  diseases,  before  unjust 
suspicion  is  aroused  while,  on  the  other  hand,  a  post-mortem 
examination  will  generally  show  whether  such  a  disease  was 
the  cause  of  death. 

Action  and  Symptoms  Modified  by  Circumstances.  There 
are  many  circumstances  and  conditions  which  either  alone 
or  in  combination  may  modify  the  action  and  the  symptoms 
of  poisons.  The  length  of  time  required  for  depositing 
absorbed  poisons  in  the  organs  or  tissues  varies  not  only 
with  different  poisons  but  also,  in  case  of  the  same  poison, 
with  the  condition  of  the  system.  The  condition  of  the 
health  of  the  person  is  often  a  very  important  matter. 
Some  diseases  seem  to  make  a  patient  immune  to  certain 
poisons,  and  some  mysterious  cause  may  enable  an  indi- 
vidual in  good  health  to  take  an  ordinarily  fatal  dose  of 
poison  without  any  apparently  injurious  consequences. 
The  habits  of  the  person  often  affect  the  question  as  wit- 
nessed, for  example,  in  the  case  of  confirmed  morphine 
eaters.  Moreover,  other  circumstances,  such  as  the  quan- 
tity of  the  poison  taken,  the  age  of  the  person,  the  food 
with  which  it  may  be  mixed,  and  the  combining  of  two  or 
more  poisons  may  also  present  serious  and  important  prob- 
lems in  connection  with  the  medico-legal  investigation. 

§  21.  Ptomaines.  There  is  a  class  of  bodies,  known  as 
ptomaines,  that  are  formed  from  the  decay  of  organic  sub- 
stances, being  produced  by  the  action  of  certain  bacteria 
upon  proteid  material.  They  are  developed,  as  a  rule,  from 


MEDICAL  JURISPRUDENCE  17 

contaminated  milk  or  cheese,  or  from  meats,  fish,  sausage, 
and  canned  vegetables,  which  have  begun  to  decompose.4 
Usually,  the  ptomaines  are  formed  in  the  early  stages  of 
decomposition  and  they  may  have  disappeared  from  mate- 
rial that  is  putrid,  in  consequence  rendering  such  material 
harmless.5 

The  ptomaines  strongly  resemble  the  vegetable  alkaloids 
in  their  chemical  and  in  their  physiological  action,  and 
while  all  ptomaines  are  not  necessarily  poisonous,  yet  some 
of  them  are  very  poisonous,  and  the  symptoms  resulting 
from  ptomaine-poisoning  may  be  confounded  with  the  symp- 
toms resulting  from  alleged  homicidal  poisoning  by  one  of 
the  vegetable  alkaloids. 

In  the  present  state  of  toxicological  science,  great  caution 
is  necessary  in  distinguishing,  therefore,  certain  alkaloidal 
poisons  from  certain  ptomaines.  For  example,  the  chem- 
ical tests  of  color-reactions  for  certain  vegetable  alkaloids 
may  be  simulated  so  closely  by  certain  ptomaine  products 
that,  by  means  of  the  color-test  alone,  it  becomes  impossible 
to  distinguish  them.  In  most  cases,  however,  the  chemist 
by  delicate  processes  may  separate  the  ptomaines  from  the 
alkaloids,  if  both  be  present,  and  thereupon  may  test  the 
latter  independently.6 

§  22.  Post-Mortem  Examinations.  The  limited  space  of 
this  article  permits  only  a  brief  reference  to  some  of  the 
most  important  matters  connected  with  the  investigation 
after  death  of  cases  of  suspected  poisoning.  If  the  body 
is  exhumed,  the  condition  of  the  coffin  should  be  noted,  and 
it  may  be  a  wise  precaution  to  collect  some  of  the  soil 
around  the  coffin  for  the  purpose  of  analysis  to  guard 
against  the  possibility  of  the" body's  absorbing  certain  poi- 
sons from  the  earth.  The  body  should  be  identified,  and  all 
parts  necessary  for  the  chemical  analysis  should  be  re- 
moved. It  is  a  mistake  to  suppose  the  stomach  alone  is 
sufficient  for  such  analysis.  The  bowels,  kidneys,  and  liver 

4  P.  &  H.,  Vol.  2,  p.  679. 

6  W.  &  St.,  Vol.  2,  p.  675. 

«  P.  &  H.,  Vol.  2,  pp.  337,  691-707. 


18  MEDICAL  JURISPEUDENCE 

should  in  all  cases  be  removed.  Poisons  generally  locate 
themselves  in  the  liver. 

It  is  also  a  wise  precaution,  in  most  cases,  to  preserve 
the  brain,  spinal  cord,  heart,  urine  found  in  the  bladder, 
and  some  of  the  blood.  In  case  of  death  from  suspected 
chloroform,  or  other  anesthetic,  the  lungs  should  be  removed 
for  examination.  The  chemical  analysis  of  vomited  matter 
and  of  the  medicines  given  to  the  patient  is  also  in  many 
cases  an  important  step  if  such  material  is  obtainable.7 

§  23.  Chemical  Analysis.  The  chemist  should  be  pre- 
pared to  testify  to  the  absolute  purity  of  all  chemicals  used 
by  him  in  conducting  his  analysis,  and  to  the  scrupulous 
cleanliness  of  all  jars,  vessels,  and  apparatus.  He  should 
know  these  facts  from  his  own  personal  tests  and  should 
not  rely  upon  the  guaranties  of  dealers  that  his  reagents 
are  * '  chemically  pure ' '.  The  material  received  for  analysis 
should  be  placed  in  separate  jars.  The  jars  should  be 
sealed  and  kept  under  lock  and  key. 

A  ''blank-test"  is  usually  made  by  the  chemist  before 
the  analysis  proper.  This  usually  consists  of  testing  an 
artificial  mixture  of  food,  or  part  of  the  liver  of  some  lower 
animal  (usually  a  calf),  the  weight  of  the  "blank"  being 
equal  to  the  weight  of  the  organ  to  be  examined,  and  the 
chemicals  used  being  in  the  same  proportion  as  in  the  final 
test.  If  this  result  shows  no  poison  present,  the  purity  of 
the  chemicals  will  be  demonstrated,  and  the  actual  test  may 
thereupon  be  made.  If  the  body  was  embalmed,  the  ingre- 
dients of  the  embalming  fluid  must  be  ascertained. 

§  24.  Other  Examinations.  In  some  cases  a  microscopic 
examination  of  the  tissues  by  a  skilled  pathologist  may 
prove  of  great  value  as  evidence,  and  a  bacteriological 
examination  of  the  bowels  may  also  be  important  in  cases 
of  suspected  poisoning  attended  with  intestinal  symptoms. 

§25.  Preparation  for  Trial.  In  order  intelligently  to 
examine  witnesses,  either  on  the  direct  or  cross-examina- 
tion, in  cases  of  alleged  poisoning,  the  practitioner  will  find 
it  necessary  to  prepare  himself  as  thoroughly  as  possible 

1 1dem,  315,  316,  319. 


19 

by  studying  the  latest  authorities  upon  the  alleged  poison 
or  poisons  and,  if  possible,  by  consulting  with  a  competent 
chemist  and  physician.  The  symptoms  produced  by  such 
alleged  poisons,  and  the  particular  tests  employed  for  their 
determination  both  qualitatively  and  quantitatively,  suggest 
the  field  to  be  explored. 

§  26.  Poisons  Introduced  after  Death.  Embalming  fluids 
may  contain  certain  poisons  as,  for  example,  arsenic  and 
corrosive  sublimate,  and  experiments  have  shown  that  even 
after  death  arsenic  and  other  crystalline  poisons  will  diffuse 
through  animal  tissue,  and  even  into  the  bladder  and  the 
urine.8  Under  such  'circumstances  it  would  be  impossible 
to  prove,  by  the  chemical  analysis,  that  death  had  been 
caused  by  the  administering  of  arsenic.  For  this  reason, 
some  States,  Michigan  for  instance,  prohibit  by  statute  the 
use  of  arsenic  in  embalming. 

§  27.  Masking  Poisons.  The  skillful  mixing  of  poisons 
by  crafty  criminals,  in  order  that  by  such  combination  their 
action  upon  the  human  system  may  be  altered  and  masked, 
and  that  the  characteristic  symptoms  of  either  one  of  the 
poisons  when  used  alone  may  be  concealed,  and  that,  after 
death,  their  discovery  by  the  usual  chemical  tests  may  be 
prevented,  at  times  presents  questions  of  great  importance.9 

The  skilled  toxicologist  will,  however,  conduct  his  analy- 
sis in  such  suspected  cases  with  a  full  realization  of  such 
possibilities.  The  expert  upon  symptoms  will,  likewise, 
keep  in  mind  the  fact  that  the  symptoms  must  necessarily 
be  influenced  by  the  rules  which  govern  the  action  of  only 
one  poison,  or  the  action  of  two  or  more  of  them  in  com- 
bination.10 

s  Idem,  708,  721. 
oEeese,  Med.  Juris.  184. 
10  Wh.  &  St.,  Vol.  2,  p,  99, 


CHAPTER  IV 
LEGITIMACY 

§  28.  Questions  Involved.  Questions  relating  to  legiti- 
mate birth  involve  problems  that  require  for  their  solution 
some  scientific  knowledge.  Among  them  are  such  matters 
as  the  duration  of  pregnancy,  the  viability  of  the  child,  the 
sexual  capacity  of  the  husband  or  wife,  child  substitution, 
superfetation,  and  posthumous  birth.  Although  there  are 
other  legal  questions  involving  a  consideration  of  these 
same  subjects  as,  for  example,  the  subject  of  impotency 
as  a  ground  for  divorce,  nevertheless,  they  may  be  conve- 
nient^ treated  in  connection  with  questions  of  legitimacy.1 

§  29.  Presumption  of  Legitimacy.  The  law  presumes 
the  legitimacy  of  children  born  in  wedlock,  no  matter  how 
soon  after  the  marriage,  or  born  within  a  competent  time 
after  the  divorce  of  the  parents,  or  after  the  death  of  the 
husband,  but  this  presumption  may  be  rebutted  by  proof 
of  the  impotency  of  the  husband,  or  by  proof  of  the  separa- 
tion of  husband  and  wife  throughout  the  entire  possible 
period  of  gestation,  or  by  proof  showing  that  the  alleged 
husband  had  no  access  to  the  wife.2 

§  30.  Period  of  Gestation.  As  to  the  period  of  human 
gestation  there  is  no  absolute  physiological  law  upon  the 
subject.  The  usual  period  is  nine  calendar  months,  or  ten 
lunar  months,  forty  weeks,  or  about  280  days.  A  recog- 
nized authority  in  summing  up  the  recorded  cases,  places 
the  normal  period  of  gestation  from  275  to  282  days  from 
the  end  of  the  last  menses.3  It  is,  moreover,  agreed  by  all 
the  authorities  that  the  period  may  be  prolonged  to  300 
days,  and  many,  although  admitting  that  such  protracted 

1  Wright  v.  Hicks,  12  Ga.  155,  56  Am.  Dec.  451 ;  Scanlon  v.  Walshe,  81  Md. 
118,  31  Atl.  498;  Cross  v.  Cross,  3  Paige  (N.  Y.)  139,  23  Am.  Dec.  778. 

2  Wh.  &  St.,  Vol.  3,  §  66. 

3  Eeese,  Med.  Juris.  498. 
20 


21 

periods  are  exceedingly  rare,  place  the  limit  even  beyond.4 
There  are,  also,  individual  cases  reported  by  physicians, 
some  of  them  ranging  as  high  as  348  days.5 

By  the  common  law  of  England  and  of  this  country  no 
positive  time  is  fixed  for  gestation,  but  in  Scotland,  France, 
and  Italy,  if  the  pregnancy  exceeds  300  days  after  the 
death  of  the  husband,  legitimacy  is  denied.  In  Germany, 
302  days  is  prescribed  by  statute. 

§  31.  Premature  Birth.  Premature  delivery  is  also  an 
important  question  in  the  matter  of  legitimacy.  Cases 
involving  the  rights  of  claimants  of  inheritances  may  arise, 
where  the  evidence  shows  that  the  claimant  was  born  within 
four,  five,  six,  or  seven  months  after  the  return  of  the  hus- 
band of  the  mother  from  an  absence  of  years.  Is  it  possi- 
ble that  the  husband  could  have  been  the  father  of  the 
child?  This  question  involves  the  doctrine  of  viability,  or 
the  earliest  period  at  which  a  child  may  be  born  and  survive. 

§  32.  Viability.  A  child  is  said  to  be  viable — from  the 
French,  vie,  Latin,  vita,  meaning  life — when  it  is  capable 
of  maintaining  an  existence  after  birth.  Viability  is  of 
importance  from  two  aspects:  one  with  respect  to  infanti- 
cide, and  the  other  with  respect  to  the  inheritance  rights 
of  legitimate  children.  The  child,  to  be  viable,  must  possess 
the  organs  essential  to  life,  and  such  organs  must  be  suffi- 
ciently developed  so  that  it  is  physiologically  possible  for  its 
life  to  continue.  In  some  extreme  cases  children  may  sur- 
vive if  born  as  early  as  between  the  fifth  and  sixth  month 
of  gestation  yet,  as  a  rule,  a  child  is  not  viable  until  the 
seventh  month,  or  not  before  180  days. 

Live  birth,  however,  should  be  distinguished  from  viable 
birth,  since  a  child  may  be  born  alive  and  yet  not  be  capable 
of  surviving.  Cases  are  known  where  infants  born  as  early 
as  in  the  fourth  month  of  gestation  have  lived  for  a  short 
time.  A  live  birth,  even  if  not  viable,  will  support  a  ten- 
ancy by  curtesy.6  A  child  born  after  death  of  the  mother 
(as  by  Caesarian  operation,  Caesar,  according  to  tradition, 

<  Wh.  &  St.,  Vol.  3,  §  66.       «  Marsellis  v.  Thalhimer,  2  Paige  (N.  Y.)  35. 
s  P.  &  H.,  Vol.  2,  p.  70. 


22  MEDICAL  JUKISPEUDENCE 

having  been  born  in  this  way,)  is  legitimate,  but  not  capa- 
ble of  establishing  tenancy  by  curtesy  which  requires  issue 
born  during  the  life  of  the  mother. 

It  results  from  the  foregoing  facts  that  if  a  woman  gives 
birth  to  a  viable  child,  it  is  evident  that  it  must  have  been 
conceived  at  least  six  or  seven  months  before  its  birth. 
This  is  the  positive  rule  of  the  civil  law,  under  which  chil- 
dren born  within  the  first  six  months  after  conception  are 
considered  as  incapable  of  living. 

§  33.  Child's  Resemblance  to  Reputed  Father.  That  the 
child  resembles  the  reputed  father  may  be  shown  in  evi- 
dence, and  where  a  mulatto  child  is  born  to  a  woman  of 
the  white  race,  whose  husband  is  also  of  the  white  race,  it 
is  competent  to  show  by  the  testimony  of  scientific  experts 
that  it  is  contrary  to  the  laws  of  nature  for  both  of  the 
parents  of  a  mulatto  to  be  of  the  white  race.7 

§  34.  Impotency.  The  question  of  impotency  may  arise 
in  several  ways.  Impotency  of  the  husband  may  be  proof 
of  the  bastardy  of  the  child  of  the  wife.  Impotency  in 
either  spouse  may  be  a  ground  for  annulment  of  marriage, 
or  for  divorce.  Impotency  may  also  be  a  defense  in  rape. 
Generally,  the  term  "impotency"  is  applied  to  the  male, 
but  it  is  properly  used  for  both  sexes.  Either  party,  more- 
over, may  be  sterile  without  being  impotent.  Impotency 
as  a  ground  for  divorce  or  annulment  of  marriage  must 
exist  at  the  time  of  the  marriage,  and  must  be  incurable.8 
Impotency,  in  the  law  of  marriage  and  divorce,  means  an 
inability  to  perform  the  sexual  act,  and  is  to  be  distin- 
guished from  sterility  which  implies  non-procreative  power. 
In  the  law  of  legitimacy  impotence  obviously  includes  both 
impotence  proper  and  sterility. 

Puberty  in  the  human  family  generally  commences  at 
fourteen  years  in  males  and  at  twelve  in  females,  although 
there  are  many  exceptions  to  this  general  rule. 

7  Bullock  v.  Knox,  96  Ala.  195,  11  So.  339;  Cross  v.  Cross,  3  Paige  (N.  Y.) 
139,  23  Am.  Dec.  778;  Watkins  v.  Carlton,  10  Leigh  (Va.)  560;  Head  v.  Head, 
1  Sim.  &  St.  150. 

sLorenz  v.  Lorenz,  93  111.  377;  Powell  v.  Powell,  18  Kan.  371;  G.  v.  G.,  33 
Md.  401,  3  Am.  Eep.  183. 


CHAPTER  V 
SEXUAL  CRIMES 

§  35.  Scope  of  Inquiry.  The  questions  to  be  considered 
in  the  following  paragraphs  are  those  that  pertain  to  cer- 
tain crimes  known  as  sexual,  or  the  crimes  of  rape  and 
sodomy.  The  purely  legal  aspects  of  such  crimes  are  treated 
elsewhere  in  this  work. 

§  36.  Rape.  In  the  crime  of  rape  the  physical  condition 
of  the  complainant  may  be  shown  either  in  corroboration 
or  in  contradiction  of  her  testimony.  It  is  desirable  that 
the  examination  should  be  made  as  soon  as  possible  after 
the  alleged  assault,  since  in  most  cases  the  marks  of  vio- 
lence will  be  obscured  or  obliterated  after  nine  or  ten  days. 

§37.  False  Accusation.  Not  only  does  it  sometimes 
happen  that  the  most  unfounded  accusations  of  rape,  based 
upon  the  vilest  motives  of  blackmail,  or  of  revenge,  are 
made  by  designing  women,  but  also,  as  well  known  to 
medical  jurists,  cases  are  found  where  women  of  highest 
personal  character,  acting  under  the  influence  of  hallucina- 
tions and  delusions,  have  mistakenly  preferred  such 
charges,  the  absolute  falseness  of  which  have  been,  in  some 
cases,  fully  demonstrated.  These  latter  cases  require  the 
investigation  of  experts  on  mental  diseases,  and  whether 
charges  by  a  female  patient  against  her  physician  are  the 
result  of  hallucination  influenced  by  drugs  is  a  question, 
also,  of  expert  evidence. 

§  38.  Remoteness  of  Examination.  That  the  time  of  the 
examination  was  remote  does  not,  as  a  rule,  affect  the  ad- 
missibility  of  such  evidence,  although  it  does  affect  its 
probative  force.  Evidence  as  to  such  examinations  has 
been  admitted  where  the  examination  was  made  months, 
and  even  for  more  than  a  year  after  the  alleged  crime  was 

23 


24  MEDICAL  JURISPRUDENCE 

committed.1    Eelative  to  the  admission  of  evidence  of  exam- 
inations, the  reader  is  referred  to  the  cases  cited  below.2 

§39.  Sodomy.  The  term  sodomy,  derived  from  the 
name  of  the  ancient  city  of  Sodom,  signifies  * '  the  unnatural 
crime"  or  "the  crime  against  nature,3  and  includes  unnat- 
ural connection  of  man  with  woman,  of  man  with  man,  or 
of  man  and  woman  with  the  lower  animals.  Such  crimes 
are  not  very  common  and  are  here  dismissed  without 
discussion.4 

1  Com.  v.  Allen,  135  Pa.  483,  19  Atl.  957. 

2  State  v.  Teipner,  36  Minn.  535,  32  N.  W.  678 ;  State  v.  Watson,  81  Iowa 
380,  46  N.  W.  868;  Gonzales  v.  State,  32  Tex.  Grim.  Eep.  611,  25  S.  W.  781; 
Com.  v.  Allen,  135  Pa.  483,  19  A.  957;  State  v.  Evans,  138  Mo.  116,  39  S.  W. 
462. 

3  Lev.  XVTtt,  22 ;  XX,  13 ;  Deut.  XXIII,  17. 

4  The  following  cases  may  be  consulted  for  further  information :  Bradford 
v.  State,  104  Ala.  68,  16  So.  107,  53  Am.  St.  Eep.  24;  Cross  v.  State,  17  Tex. 
App.  476;  Herring  v.  State,  119  Ga.  709,  46 'S.  E.  876. 


CHAPTER  VI 
PREGNANCY 

§40.  Legal  Questions.  The  existence  of  pregnancy  is 
another  of  the  possible  medico-legal  questions  that  may  at 
times  prove  to  be  of  great  importance.  For  example,  preg- 
nancy at  the  time  of  marriage  may  be  a  ground  for  divorce ; 
in  an  action  for  seduction,  pregnancy  may  be  alleged  as  a 
basis  of  increased  damages ;  the  question  may  arise  in  an 
action  for  malpractice  alleging  a  wrong  diagnosis ;  in  crim- 
inal prosecutions  for  procuring  the  abortion  of  "a  woman 
pregnant  with  child",  the  fact  of  pregnancy  may  be  essen- 
tial; in  matters  of  inheritance  a  woman  may  claim  to  be 
pregnant  with  an  heir  to  an  estate;  and  pregnancy  of  a 
woman  under  sentence  of  death  may  be  pleaded  to  post- 
pone execution  of  the  sentence. 

§  41.  Jury  of  Matrons.  A  woman  under  sentence  of 
death  may  plead  her  pregnancy  in  order  to  obtain  a  re- 
prieve. By  the  common  law  the  court  in  such  a  case  directs 
"a  jury  of  twelve  matrons  or  discreet  women"  to  inquire 
into  the  fact.  In  civil  cases  where,  for  example,  a  widow 
was  suspected  of  feigning  pregnancy  in  order  to  produce 
a  supposititious  heir  to  the  estate,  the  heir-presumptive 
could  sue  out  the  writ  de  venire  inspiciendo,  which  directed 
that  in  the  presence  of  knights  and  women  the  female 
should  be  examined.1  The  absurdity  of  committing  such  a 
question  to  persons  having  no  expert  knowledge  of  the  sub- 
ject is  apparent.  Under  modern  practice  the  fact  would  be 
determined  by  medical  examiners. 

§  42.  Abortion.  Definition.  Abortion,  or  miscarriage, 
in  medical  science,  signifies  the  expulsion  of  the  fetus  before 
the  sixth  month  of  gestation,  or  before  it  is  considered 
viable,  premature  labor  being  the  term  applied  to  natural 

iSee  Bl.  Comm.,  Vol.  1,  p.  456;  Vol.  4,  p.  394. 

25 


26  MEDICAL  JURISPRUDENCE 

delivery  after  this  period  but  before  the  full  term.2  In 
law,  while  no  such  distinction  is  made,  nevertheless  abor- 
tion does  not  necessarily  impute  a  crime.  Abortion  fre- 
quently arises  from  physical  weakness,  either  constitutional 
or  temporary,  and  may  result  from  many  natural  causes, 
such  as  disease,  bodily  injury,  or  nervous  shock.  The 
causing  or  the  procuring  of  an  abortion  is,  moreover,  not 
necessarily  criminal,  since  it  may  be  necessary  for  the 
preservation  of  a  woman's  life. 

Criminal  Abortion.  At  common  law,  abortion  is  the  in- 
tentional and  unlawful  causing  or  procuring  of  the  mis- 
carriage or  premature  delivery  of  a  woman  quick  with 
child.  The  intent  is  the  gravamen  of  the  offense,  and  this 
may  be  shown  by  the  drugs  or  instruments  used,  and  by 
other  ways. 

Quick  ivith  Child.  While  it  is,  undoubtedly,  the  common- 
law  rule  that  the  woman  must  be  quick  with  child,3  yet 
some  jurisdictions  have  held  that  it  is  not  essential  that 
the  child  should  have  quickened,4  it  being  said  in  a  Penn- 
sylvania case  that  it  is  not  the  killing  of  a  living  child  which 
constitutes  the  offense,  but  the  destruction  of  gestation  by 
wicked  means  and  against  nature.5  Some  of  the  statutes, 
moreover,  provide  that  abortion  may  be  committed  upon 
"any  pregnant  woman".  The  doctrine  of  " quickening" 
is  due  to  the  ancient  error  that  life  did  not  actually  begin 
till  the  period  of  quickening. 

Means  of  Producing  Abortion.  The  means  of  procuring 
abortion  are,  generally,  of  three  kinds,  namely,  drugs,  force, 
and  instruments.  Competent  authorities  estimate  that  fifty 
per  cent  of  the  cases  of  criminal  abortion  prove  fatal.  At 
common  law  the  death  of  the  mother  from  criminal  abor- 
tion is  murder.6 

2Keese,  Med.  Juris. 

s  Com.  v.  Parker,  50  Mass.  263;  Mitchell  v.  Com.,  78  Ky.  204;  State  v 
Cooper,  22  N.  J.  L.  52. 

*  State  v.  Slagle,  83  N.  C.  630;  Wilson  v.  Ohio,  2  Ohio  St.  319;  Mills  v. 
Com.,  13  Pa.  St.  630. 

e  Mills  v.  Com.,  supra. 

"eHale,  1  PI.  of  Crown  430;  4  Bl.  Com.  201;  Com.  v.  Pa.-ker,  50  Mass.  263. 


MEDICAL  JURISPRUDENCE  27 

Medical  Evidence.  Medical  experts  may  testify  whether 
Or  not  in  their  opinion,  from  examination  of  the  woman,  an 
abortion  has  been  performed.  They  may  also  give  their 
opinions  as  to  the  cause  of  the  abortion,  also  whether  there 
was  any  possibility  that  it  may  have  been  performed  by 
the  woman  herself.  Surgical  instruments  adapted  for  pro- 
ducing abortion,  found  in  possession  of  the  accused,  may 
be  put  in  evidence,7  and  experts  may  testify  concerning 
the  character  of  such  instruments. 

i  Com.  v.  Brown,  121  Mass.  69. 


CHAPTER  VH 
INFANTICIDE 

Infanticide,  or  the  criminal  destruction  of  the  new-born 
child,  is  not  a  separate,  specific  crime,  since  it  is  a  phase 
of  murder.  It  is  essential,  however,  that  the  child  be  com- 
pletely born,  and  also  that  it  be  born  alive,  and  the  burden 
is  upon  the  prosecution  to  establish  both  of  these  facts. 
The  child  must  also  have  manifested  some  sign  of  life. 
The  crying  of  the  child  is  said  to  be  the  strongest  evidence 
of  the  fact  of  life,  yet  it  is  not  necessary  evidence.  Any 
slight  movement,  such  as  the  twitching  of  a  muscle,  is  suffi- 
cient, to  predicate  life.  Neither  is  it  necessary  to  prove 
that  the  child  breathed,  in  order  to  establish  a  live  birth, 
since  a  child  may  be  alive  and  have  an  existence  independ- 
ent of  its  mother  although  respiration  may  not  be 
established.1  Moreover,  the  fact  of  respiration,  if  proven, 
although  conclusively  showing  that  the  child  had  lived,  does 
not  necessarily  prove  that  it  was  alive  when  completely 
born. 

It  has  been  repeatedly  said  that  "the  law  presumes  that 
every  child  is  born  into  the  world  dead".2  This  is  error; 
the  correct  view  being  that  whereas  felonious  homicide  is 
the  killing  of  a  "human  being",  one  of  the  essential  ele- 
ments of  the  crime  is  the  fact  that  there  was  a  "human 
being",  a  human  creature  with  an  independent  existence, 
and  the  burden  of  establishing  this  fact,  as  of  all  essential 
facts,  is  upon  the  prosecution. 

§43.  Criminal  Causes  of  Death.  The  usual  causes  of 
death  in  infanticide  are,  generally,  suffocation,  strangula- 
tion, drowning,  punctured  wounds  made,  for  example,  with 

lEeese,  Med.  Juris.  503;  Rex.  v.  Brain,  6  C.  &  P.  349;  Arehbold,  Crim. 
Plead.  367. 

2  Reese,  Med.  Jur.  455. 

28 


MEDICAL  JURISPRUDENCE  29 

a  pin,  needle,  or  other  sharp  instrument  in  the  fontanelles 
or  between  the  vertebrae. 

§  44.  Accidental  Causes  of  Death.  It  should  always  be 
remembered  that  the  accidental  causes  of  death  in  new- 
born children  are  many.  Moreover,  many  children  are 
born  dead — one  in  every  eighteen  or  twenty,  it  is  said.3 

*  Taylor ;  Reese. 


CHAPTER  VIII 
WOUNDS 

§  45.  Legal  Importance.  The  subject  of  wounds  is  often 
of  importance  from  a  medico-legal  point  of  view,  but  only 
the  briefest  reference  to  it  is  possible  in  this  article.  The 
word  "wound"  found  in  statutes  relating  to  crimes,  and 
such  terms  as  "mortal  wound",  and  "dangerous  wound" 
will  suggest  the  practical  bearing  of  the  topic.  In  particu- 
lar instances,  the  nature  and  extent  of  a  wound,  its  size, 
length,  depth,  direction,  the  number  of  wounds,  whether 
or  not  a  wound  was  mortal,  whether  it  was  inflicted  during 
the  life  or  made  after  death,  whether  it  was  accidental, 
suicidal,  or  inflicted  by  another,  may  be  of  vital  importance 
in  the  theory  of  a  case. 

§  46.  Surgical  Classification.  Surgeons  usually  classify 
wounds  as  open  or  subcutaneous,  the  former  including  punc- 
tured, incised,  lacerated,  or  gun-shot  wounds,  while  sub- 
cutaneous wounds  include  contusions  (where  the  skin  is 
not  broken),  sprains,  dislocations,  fractures  of  bones,  or 
the  rupture  of  internal  organs.  The  scientific  knowledge 
of  wounds  is  a  broad  subject,  and  there  are  experts  upon 
special  branches  of  wounds  as,  for  example,  gun-shot 
wounds. 

§  47.  Surgical  Definitions.  Punctured  wounds  are  made 
by  the  penetration  of  some  pointed  instrument,  weapon, 
or  other  substance.  Incised  wounds  are  cuts,  "a  solution 
of  continuity  without  loss  of  substance. ' '  Lacerated  wounds 
are  torn  or  ragged  wounds,  produced  by  sawing  movements 
of  blunt  or  jagged  instruments,  or  by  hacking.  Contused 
wounds  are  accompanied  with  considerable  bruising,  a  dis- 
coloration of  the  surrounding  skin  caused  by  the  effusion 
of  blood  from  small  ruptured  capillaries,  the  discoloration 
being  known  as  ecchymosis.  Mixed  wounds  combine  the 

30 


MEDICAL  JURISPRUDENCE  31 

characteristics  of  two  or  more  wounds,  as  often  illustrated 
in  gun-shot  wounds. 

§  48.  Legal  Definition.  The  legal  definition  of  a  wound 
is  not  identical  with  the  surgical  definition  since,  in  law,  a 
wound  embraces  all  bodily  injuries  whether  external  or 
internal,  with  or  without  a  solution  of  continuity.  In  the 
legal  sense,  a  wound  is  any  lesion  of  the  body,  whether 
cut,  bruise,  contusion,  fracture,  dislocation,  or  burn.1 

A  wound  has  been  further  defined  as  "where  the  violence 
is  so  great  as  to  draw  blood,  by  striking  or  stabbing  with 
a  sword,  knife,  or  other  instrument,  or  by  shooting,  or  by 
striking  with  a  cudgel,  the  fist,  or  the  like.  It  includes 
incised,  punctured,  lacerated,  contused,  or  gun-shot 
wounds".2 

§  49.  Practical  Hints.  Wounds  inflicted  before  or  after 
death  may  be  distinguished  by  experts  by  the  characteristic 
edges,  for  example,  incised  wounds;  also  by  evidence  of 
the  presence  or  absence  of  hemorrhage,  inflammation  of 
the  surrounding  parts,  suppuration,  etc.  Gun-shot  wounds 
differ  much  in  appearance  according  to  the  distance  from 
which  the  weapon  was  fired,  the  nature  of  the  bullet  or 
other  projectile,  the  caliber  of  the  weapon,  and  the  course 
of  the  bullet.  The  evidence  of  powder  marks  upon  the 
body  is  often  important  in  determining  the  distance  of  the 
firing.  The  direction  of  the  wound,  and  its  nature,  are 
also  of  great  value  in  questions  of  suicide.  An  important 
part  of  the  evidence,  in  some  cases,  is  the  examination  of 
the  clothes  of  the  deceased,  since  this  may  reveal  the  mode 
in  which  the  wound  was  made. 

i  Whart.,  Law  Lexicon. 

aArchbold,  Crim.  Plead.  (15th  ed.)  567,  572. 


CHAPTER  IX 
QUESTIONS  OF  IDENTITY 

§  50.  Mistakes  as  to  Identity.  One  of  the  most  difficult 
problems  with  which  courts  have  to  deal  is  the  question 
of  the  identification  of  living  persons,  and  there  is  no  one 
of  mature  years  who  has  not  experienced  the  fact  that  it 
is  very  easy  to  be  mistaken  in  the  supposed  recognition  of 
an  individual.  Many  persons  are  very  positive,  however, 
in  their  assertions  of  identity,  and  will  in  good  faith  testify 
in  such  cases  with  absolute  certainty,  when  in  fact  they 
are  laboring  under  the  greatest  mistakes.  Owing  to  mis- 
taken identity  innocent  persons  have  suffered  death  for 
crimes  committed  by  others,  and  in  civil  cases  there  have 
been  many  notorious  illustrations  of  similar  error.  In  the 
famous  Tichborne  claimant  case  in  England,  eighty-five 
witnesses,  including  the  real  Sir  Roger  Tichborne 's  own 
mother,  positively  swore  that  the  fraudulent  claimant  was 
Sir  Roger.  Moreover,  witnesses  equally  honest  will  testify 
to  the  most  contradictory  statements  relative  to  the  descrip- 
tion of  persons,  such  as  the  size,  height,  complexion,  color 
of  hair,  clothing,  etc. 

§  51.  Some  Facts  of  Vision.  There  are  certain  scientific 
facts  relating  to  vision  that  are  of  great  importance  in 
some  questions  of  identity.  In  the  first  place,  acuteness 
of  vision  depends  largely  upon  the  age  of  the  individual, 
conditions  of  weather,  and  the  time  of  the  day.  Experi- 
ments in  physics  have  demonstrated  that  even  persons  best 
known  to  an  observer  can  be  recognized  by  him,  in  broad 
daylight,  at  an  average  maximum  distance  of  109  yards. 
Even  then,  the  recognition  is  difficult  in  many  cases.  Per- 
sons but  slightly  known  can  be  trustworthily  identified  not 
more  than  twenty-seven  to  thirty-three  yards  away,  and 
persons  seen  for  the  first  time  cannot  be  clearly  discerned 

32 


MEDICAL  JURISPRUDENCE  33 

for  future  identification  if  distant  more  than  from  sixteen 
to  twenty- two  yards.  By  moonlight,  a  distance  of  seven- 
teen yards  is  the  limit  at  which  the  best-known  individ- 
uals can  be  identified,  and  by  starlight  the  features  of 
persons  intimately  known  cannot  be  discerned  beyond  ten 
to  thirteen  feet. 

Further  experiments  have  established  the  fact  that  the 
flash  of  a  gun  or  pistol,  fired  in  the  nighttime,  may  reveal 
to  one  sufficiently  near  the  features  of  the  person  discharg- 
ing the  weapon.1  A  flash  of  lightning  may  also  disclose 
one's  features  sufficiently  for  identification,  but  the  belief 
entertained  by  some  that  the  sensation  of  light  "seeing 
sparks"  occasioned  by  a  blow  upon  the  eyes  or  head  will 
enable  such  assailed  person  to  see,  in  the  night,  his  assail- 
ant, is  mere  superstition.2 

§  52.  Identification  of  Dead.  Where  the  features  of  the 
dead  are  unrecognizable,  or  are  absent,  the  evidence  of 
known  scars,  body  marks,  moles,  peculiarities  of  the  teeth, 
including  the  fillings,  may  be  of  great  value  for  the  pur- 
poses of  identification.  In  young  persons,  the  stage  of  devel- 
opment of  the  teeth  affords  important  evidence  in  deter- 
mining the  age,  and  the  skilled  anatomist  may,  in  connec- 
tion with  the  remains  of  a  fetus,  fix  the  age  within  a  few 
months  or,  in  case  of  a  young  child,  within  a  year  or  two, 
by  careful  examination  of  the  points  of  ossification  and 
other  signs  of  development.  In  case  of  adult  skeletons, 
the  sex  may  usually  be  determined  by  the  size,  shape,  and 
general  contour  of  the  bones,  especially  the  pelvic  bones. 
The  skull  may  also  serve  to  identify  the  race  to  which  the 
dead  person  belonged.  In  the  identification  of  separate 
bones,  however,  care  is  required,  since  cases  are  not  want- 
ing where  the  bones  of  lower  animals  have  been  mistaken 
for  human  bones. 

1  W.  &  T.,  For.  Mecl.  559. 

2  Idem,  560. 


CHAPTER  X 
SURVIVORSHIP 

§  53.  No  Presumption  of  Survival.  By  our  common  law, 
where  several  persons  some  of  whom  are  reciprocally  the 
heirs  of  each  other  perish  in  a  common  disaster,  such  as  a 
shipwreck  or  fire,  there  is  no  presumption,  when  it  cannot 
be  ascertained  by  positive  evidence  which  died  first,  that 
any  particular  one  survived  the  others,  but  all,  regardless 
of  age,  sex,  or  condition  of  health,  will  be  presumed  to 
have  died  at  the  same  moment.  In  the  civil  law,  the  rule 
is  otherwise,  the  presumption  being  that  the  stronger  sex, 
the  males,  survived  the  females,  and  that  aged  persons 
succumbed  sooner  than  the  young  and  vigorous.  By  our 
common  law,  however,  the  matter  of  successive  survivor- 
ship must  be  proved  by  facts,  and  one  who  claims  by  an 
alleged  survivorship  must  prove  the  survivorship,  else  the 
right  of  succession  will  be  determined  upon  the  presump- 
tion that  all  died  simultaneously.1  Reese2  says  that  by  Eng- 
lish law  a  father  is  presumed  to  survive  a  child  under 
puberty,  and  where  a  mother  and  infant  die  in  childbirth, 
that  the  presumption  is  in  favor  of  the  mother 's  survivor- 
ship. These  are  civil-law  principles,  however,  and  have  no 
place  in  our  English  common  law. 

Interesting  cases  on  this  topic  are  Browne  v.  Duncan,3 
which  involved  the  death  of  a  husband  and  wife;  Ehlis 
Estate,4  where  the  question  was  who  survived  of  a  family 
that  perished  in  a  burning  house,  and  In  re  Ridgway,5 
which  arose  out  of  the  disaster  to  the  steamer  Schiller. 

iRex.  v.  Dr.  Hay,  1  W.  Bl.  640;  Wright  v.  Sarmuda,  2  Phillim.  266-277; 
Cawman  v.  Eogers,  73  Md.  406;  Eussell  v.  Hallett,  23  Kan.  278;  Newell  v. 
Nichols,  75  N.  Y.  86;  In  re  Wilbor,  20  E.  I.  126,  37  A.  634. 

2Eeese,  Med.  Juris.  66. 

a  29  So.  304. 

*  73  Wis.  445. 

6  4  Eedf.  Surr.  (N.  Y.)  226. 

34 


CHAPTER  XI 
INSANITY 

§54.  Importance  of  Subject.  No  subject  is  of  greater 
importance  to  the  medical  jurist  than  that  of  insanity,  and 
considering  the  profound  research  that  has  been  applied 
to  this  branch  of  medical  science,  especially  in  recent  years, 
and  the  volumes  that  have  been  written  upon  it,  attempts 
to  epitomize  it  are  almost  hopeless.  There  are,  however, 
certain  fundamental  principles  which  every  lawyer  should 
know,  and  these  alone  can  be  touched  upon  here. 

§  55.  Mental  Irresponsibility.  To  the  medical  expert  the 
recognized  types  or  forms  of  insanity  are  many,  and  the 
possible  varying  phases  of  these  forms  in  individual  cases 
are  endless.  In  fact,  no  single  comprehensive  definition  of 
insanity  could  be  framed  that  would  apply  to  all  cases. 

From  the  legal  standpoint,  however,  all  discussions  con- 
cerning the  peculiar  forms  or  types  of  mental  alienation 
are  extraneous.  The  sole  question  when  insanity  is  alleged 
in  defense  for  crime  is :  Did  the  accused,  when  the  act  was 
committed,  have  in  contemplation  of  law  sufficient  mental 
capacity  to  make  him  legally  responsible?  When  the  law 
says  that  insanity  is  a  defense  in  a  criminal  prosecution, 
the  word  "insanity"  is  used  in  the  legal  and  not  in  a 
medical  sense.  There  are  many  instances  of  insanity  as  a 
disease  that  could  not,  considering  the  protection  of  society, 
be  recognized  by  the  law  as  constituting  insanity  as  a  de- 
fense for  crime.  Many  persons,  therefore,  who  may  be 
"insane"  from  a  medical  standpoint  are,  nevertheless,  re- 
sponsible for  their  criminal  acts.  Mental  disease  is  not  a 
defense  and,  strictly  speaking,  insanity  is  not  a  defense 
but  rather  only  such  mental  irresponsibility  due  to  the  idi- 
otic or  insane  mind  as  the  law  recognizes  as  incompatible 
with  the  entertaining  of  a  criminal  intent. 

35 


36  MEDICAL  JUEISPEUDENCE 

§  56.  Technical  Terms.  For  the  purpose  of  eliciting  evi- 
dence, the  lawyer  will  often  find  it  necessary,  however,  to 
familiarize  himself  with  the  technical  terms  used  by  vari- 
ous experts  upon  insanity.  In  matters  of  evidence,  the  form 
or  type  of  the  alleged  insanity  is  often  important  since 
certain  causes  such  as  disease,  accidents,  shocks,  trouble, 
excitement,  occupation,  excesses,  privations,  and  heredity, 
may  be  more  pertinently  shown  for  some  forms  of  insanity 
than  for  others.  Moreover,  certain  words,  terms,  and 
phrases  used  in  connection  with  mental  alienation  have 
received  judicial  recognition. 

Idiots.  An  idiot  is  one  whose  reason  has  never  devel- 
oped. This  does  not  necessarily  mean  fatuity  from  birth, 
as  sometimes  said  by  law  writers  and  courts,  since  idiocy 
may  be  due  to  lack  of  brain  development  in  early  life. 

Lunatics.  A  lunatic  is  one  who  has  lost  his  reason. 
The  term  is  often  applied  to  one  who  has  periods  of  insan- 
ity, and  who  otherwise  enjoys  " lucid  intervals". 

Irresistible  Impulse.  An  irresistible  impulse,  connected 
with  what  is  known  as  impulsive  insanity,  is  a  feeling  that 
regardless  of  consequences  the  act  must  be  done,  and  which 
the  will  is  unable  to  prevent  or  control. 

Moral  Insanity.  Moral  insanity,  sometimes  called  "emo- 
tional insanity",  is  a  term  applied  to  moral  degenerates 
or  those  persons  whose  moral  natures  are  exceedingly 
depraved  or  perverted. 

Hallucinations.  Hallucinations  are  erroneous  percep- 
tions evolved  from  the  brain  itself,  and  not  depending 
upon  external  objects.  In  hallucinations,  therefore,  the 
object  is  not  present. 

Illusions.  An  illusion  is  a  "  false  interpretation  of 
an  external  object".  The  object  is  present  but  erroneously 
perceived. 

Delusions.  Delusions  are  conceptions  based  upon  the 
false  perceptions  of  hallucinations  or  illusions,  or  are 
the  result  of  false  reasoning.  Hallucinations,  illusions, 
and  consequently  delusions  are  the  possible  experience  of 
all  persons — the  sane  as  well  as  the  insane.  Therefore, 


MEDICAL  JURISPRUDENCE  37 

it  is  in  the  character,  nature,  and  quality  of  the  delusions 
that  the  insane  mind  is  most  frequently  determined.  It 
is  owing  to  the  fact  that  delusions  may  exist  in  either 
the  sane  or  the  insane  mind  that  the  phrase  "insane  delu- 
sion" has  been  coined.  The  expression  is  criticizable,  but 
it  has  become  fixed  in  legal  nomenclature.  In  Guiteau's 
case  it  is  said : 

"The  insane  delusion,  according  to  all  testimony,  seems 
to  be  an  unreasoning  and  incorrigible  belief  in  the  exist- 
ence of  facts  which  are  either  impossible  absolutely  or  at 
least  impossible  under  the  circumstances  of  the  individual." 

Paranoia.  Paranoia  is  usually  a  degenerative  and 
congenital  mental  disease.  It  is  characterized  by  delu- 
sions of  a  fixed  and  systematic  character.  The  delusion 
may  assume  the  form  of  a  command  from  God  to  do  a 
particular  act.  "The  cases  of  Oxford,  Guiteau,  and  Pren- 
dergast  are  striking  examples"  of  these  types.1 

The  prevailing  form  of  paranoia  is  accompanied  by  delu- 
sions of  persecution  or  of  grandeur.  The  patient  may 
imagine  himself  to  be  some  great  personage,  or  the  delu- 
sion may  take  the  form  of  being  engaged  in  great  law- 
suits (litigious  paranoia),  or  of  being  the  object  of  love 
of  the  opposite  sex  (erotic  paranoia). 

Epileptic  Insanity.  Epileptic  insanity  is  that  form 
of  mental  disease  found  in  connection  with  the  convulsive 
nerve  disease  known  as  epilepsy.  As  a  criminal  defense 
the  fact  that  the  accused  has  at  some  time  suffered  from 
epilepsy  is  very  common.  Delusions  may  precede  or  follow 
attacks,  and  the  most  frenzied  mania  may  be  the  result. 
A  mental  unbalance  may  also  occur  preceding  or  following 
the  attacks,  the  disease  in  such  cases  being  known  as 
"masked  epilepsy". 

Hysterical  Insanity.  Hysterical  insanity,  generally 
found  among  young  girls  and  women,  is  connected  with 
hysteria,  a  functional  disturbance  of  the  whole  nervous 
system.  It  is  associated  with  impulsive  insanity,  and  is 

i  Witt  &  Beck.,  Med.  Juris. 


38  MEDICAL  JURISPRUDENCE 

sometimes  found  in  cases  of  young  women  who  make  false 
accusations  of  assault. 

Organic  Psychoses.  Psychosis  signifies  mental  disease. 
Organic  psychoses  include  those  forms  or  types  that 
show  organic  impairment,  such  as  lesions  of  the  brain, 
its  membranes,  or  changes  in  tissue.  In  such  cases  a  post- 
mortem examination,  especially  by  aid  of  the  microscope, 
affords  in  connection  with  diagnostic  symptoms  indisput- 
able evidence  of  insanity. 

§57.  Presumption  of  Sanity.  Sanity  is  always  pre- 
sumed until  the  contrary  appears.  It  is,  therefore,  never 
incumbent  upon  the  prosecution  to  introduce  any  evidence 
in  proof  of  sanity  until  insanity  has  been  alleged  in  defense, 
and  some  evidence  thereto  has  been  introduced  by  the  ac- 
cused. Where  one  has  been  adjudged  insane  by  a  legal 
inquest  the  presumption  of  insanity  may  continue  until 
rebutted  by  evidence  of  sanity. 

§  58.  Legal  Tests  of  Insanity.  The  early  writers  upon 
the  law  of  crimes  lend  us  no  aid  in  satisfactorily  deter- 
mining the  legal  tests  of  mental  irresponsibility.  They 
wrote  in  a  crude  age  of  medical  knowledge,  and  in  a  still 
cruder  age  of  popular  superstition  and  prejudice.  A  few 
centuries  ago  it  seems  that  insanity  did  not  warrant  a 
verdict  of  "not  guilty",  but  upon  the  rendering  of  a  special 
verdict  the  king  granted  a  pardon.2  Fitz  Herbert  says : 

"He  who  shall  be  said  to  be  a  sot  and  idiot  from  his 
birth  is  such  a  person  who  cannot  account  or  number  twenty 
pence,  nor  can  tell  who  was  his  father  or  mother,  nor  how 
old  he  is."3 

Hale  quaintly  says  concerning  these  tests :  ' i  These  may 
be  too  narrow  grounds."  4 

Coke  and  Hale  speak  but  briefly  upon  the  subject,  and 
Blackstone  merely  says  that  idiots  and  lunatics  are  to  be 
excused  from  the  guilt  of  crimes,  providing  it  be  "a  total 

2  See  Fitz  Herbert,  Cor.  351. 
s  Fitz  Herbert,  N.  B.  532. 
*  PI.  of  Crown  c.  4. 


MEDICAL  JUEISPEUDENCE  39 

idiocy,  or  absolute  insanity"  the  distinction  being  made,  as 
by  Hale,  between  total  and  partial  insanity.  Hawkins,  who 
wrote  forty  years  before  Blackstone,  while  devoting  but 
three  lines  to  the  subject  uses,  nevertheless,  a  phrase  which 
none  of  his  predecessors  employs,  and  yet  one  which  is 
substantially  found  in  every  textbook  of  today.  He  says : 

''Those  who  are  under  a  natural  disability  of  distin- 
guishing between  good  and  evil,  as  infants  under  the  age 
of  discretion,  idiots,  and  lunatics,  are  not  punishable  by 
any  criminal  prosecution  whatsoever." 

McNaghten's  Case.  The  case  generally  cited  as  the 
leading  case  upon  the  subject  is  McNaghten's  case  which 
was  tried  in  1843.  McNaghten  was  tried  in  London 
for  the  murder  of  Mr.  Drummond,  private  secretary  of 
Sir  Robert  Peel.  The  prisoner  intended  to  kill  Sir  Robert 
but  mistook  Mr.  Drummond  for  the  intended  victim.  The 
accused  was  .acquitted  on  the  ground  of  insanity.  Due  to 
the  excitement  aroused  by  the  acquittal,  the  House  of  Lords 
submitted  a  series  of  questions  to  the  English  judges.  The 
opinion  given  by  fourteen  of  the  fifteen  judges  of  Eng- 
land, in  reply  to  one  of  the  questions,  was  substantially  as 
follows : 

To  establish  a  defense  on  the  ground  of  insanity,  it  must 
be  clearly  proved  that  at  the  time  of  committing  the  act 
the  accused  was  laboring  under  such  a  defect  of  reason 
from  disease  of  the  mind  as  not  to  know  the  nature  and 
quality  of  the  act  he  was  doing,  or  if  he  did  know  it  that 
he  did  not  know  he  was  doing  what  was  wrong  or,  in  other 
words,  whether  the  accused  at  the  time  of  doing  the  act 
knew  the  difference  between  right  and  wrong. 

Knowledge  of  Right  and  Wrong.  The  test  thus  cited 
in  McNaghten's  case  is  often  referred  to  as  the  "right 
and  wrong  test".  Wrong  as  here  used  means  wrong  as 
defined  by  the  law  of  the  land.  The  substance  of  the  test 
is  much  older,  however,  than  the  celebrated  case  with  which 
it  is  generally  identified.  In  fact,  Hawkins,  two  hundred 
years  ago,  practically  recognized  it  in  his  phrase  of  "dis- 


40  MEDICAL  JUKISPKUDENCE 

tinguishing  between  good  and  evil".  However,  the  rule  as 
laid  down  by  the  judges  in  McNaghten's  case  is  today  the 
only  test  in  many  American  States.  It  has  been  modified, 
as  it  should  be,  in  many  jurisdictions,  the  test  being  not 
whether  the  accused  knew  the  difference  between  right  and 
wrong,  but  whether  he  had  sufficient  mental  capacity  to 
know  such  difference  at  the  time  of  the  act  and  with  par- 
ticular reference  to  it.  In  a  New  York  case  it  was  held 
error  to  use  the  exact  language  in  McNaghten's  case,  since 
the  amount  of  proof  as  to  insanity  required  from  the  de-> 
fendant  under  that  rule  ("must  be  clearly  proved")  was 
calculated  to  mislead  the  jury.5 

§  59.  Rule  as  to  Delusions.  The  fourth  question  put  to 
the  judges  in  McNaghten's  case  was:  "If  a  person  under 
an  insane  delusion  as  to  existing  facts  commits  an  offense 
in  consequence  thereof,  is  he  thereby  excused?"  The  judges 
replied  in  substance: 

If  one  labors  under  partial  delusion  only,  and  is  not  in 
other  respects  insane,  we  think  he  must  be  considered  in 
the  same  situation  as  to  responsibility  as  if  the  facts  with 
respect  to  which  the  delusions  exist  were  real.  For  exam- 
ple, if  under  the  influence  of  his  delusion  he  supposed 
another  man  to  be  in  the  act  of  attempting  to  kill  him  and 
he  kills  that  man,  as  he  supposes  in  self-defense,  he  would 
be  exempt  from  punishment.  If,  however,  his  delusion  was 
that  the  deceased  had  inflicted  serious  injury  to  his  char- 
acter and  fortune,  and  he  killed  him  in  revenge,  he  would 
be  liable  to  punishment. 

This  rule  has  been  widely  quoted  and  has  been  adopted 
by  many  American  courts. 

Irresistible  Impulse.  The  highest  medical  authority 
asserts  that  the  insane  mind  may,  at  times,  be  fully 
able  to  distinguish  between  right  and  wrong,  and  yet  be 
driven  by  some  uncontrollable  force  or  irresistible  impulse 
to  the  commission  of  the  wrong.  All  courts  apply  the  rule 
that  if  the  accused  at  the  time  of  the  alleged  crime  did  not 
have  sufficient  mental  capacity  to  distinguish  between  right 

c  People  v.  Nino,  149  N.  Y.  317. 


MEDICAL  JURISPRUDENCE  41 

and  wrong,  then  he  should  not  be  punished,  but  owing  to 
the  difficulties  in  applying  the  irresistible-impulse  doctrine, 
and  to  the  great  abuse  that  may  be  made  of  it  as  a  defense, 
many  courts  have  refused  to  recognize  it  as  a  test.  If, 
however,  the  alienists  are  correct,  and  if  it  is  true  that  an 
impulse  to  do  a  criminal  act  may  be  literally  irresistible, 
and  that  such  impulse  is  not  the  act  of  mere  anger,  revenge, 
or  other  passion,  and  does  not  proceed  from  causes  within 
the  control  of  the  individual,  but  is  caused  by  mental  dis- 
ease, then  there  should  be  no  doubt  as  to  the  true  legal 
principle.  Some  of  our  courts  have  recognized  this  fact, 
and  in  some  jurisdictions  the  " irresistible-impulse  test" 
is  recognized  equally  with  the  "right  and  wrong  test". 
While  the  plea  should  be  received  only  upon  the  most  care- 
ful scrutiny,  yet,  on  the  other  hand,  the  law  in  its  endeavors 
to  arrive  at  true  principles  should  be  removed  from  the 
restraints  of  prejudice. 

Kleptomania.  Among  the  various  forms  of  impulsive 
mania  is  found  "kleptomania"  which  has  been  defined 
as  "an  irresistible  impulse  to  steal".  The  condition  would 
seem,  however,  to  be  rather  a  type  of  "moral  insanity" 
than  such  an  irresistible  impulse  as  is  referred  to  in  the 
preceding  section.  While  there  appears  to  be  in  the  gen- 
uine cases  an  absence  of  moral  sense,  nevertheless,  a  whole- 
some fear  of  detection  exists,  and  upon  principle  it  is  dif- 
cult  to  see  why  such  persons  are  not  criminally  respon- 
sible. While  in  many  cases  motive  is  apparently  absent, 
yet  motive  is  not  an  essential  element  of  crime  and,  more- 
over, greed  is  as  often  found  among  the  rich  as  among 
the  poor.  In  a  few  cases,  however,  the  defense  of  klepto- 
mania has  been  recognized. 

Hypnotism.  Till  within  a  comparatively  recent  time 
most  people  have  regarded  alleged  hypnotic  phenomena 
with  incredulity  and  even  ridicule.  Nevertheless,  hyp- 
notism is  well  established  in  scientific  reality  and  is  gov- 
erned by  definite  physical  and  psychologic  laws.  Charcot 
defines  hypnotism  as  "an  artificially-produced  morbid  con- 
dition or  neurosis,  because  there  is  not,  so  far  as  known, 


42  MEDICAL  JURISPRUDENCE 

any  anatomical  lesion".  In  the  hypnotic  state  suggestion 
is  possible,  and  there  is  no  doubt  that  in  some  cases  the 
hypnotized  subject  may  be  made  the  innocent  instrument 
of  crime.  So  great,  however,  is  the  prejudice  against  this 
view  that  the  matter  has  received  but  little  attention 
judicially. 

§60.  Evidence  Relating  to  Insanity.  Experts  may 
answer  Jiypothetical  questions  based  upon  the  evidence  as 
to  the  sanity  or  insanity  of  a  supposed  person  in  consid- 
eration of  all  such  circumstances.  The  manner  and  the 
appearance  of  the  accused  during  the  trial,  and  while  testi- 
fying if  called  as  a  witness,  may  be  considered  by  the  jury 
in  connection  with  expert  opinion  thereon.  Experts  should 
not  be  permitted  to  state  whether  or  not  the  accused  is 
criminally  responsible  since  that  question  is  for  the  jury, 
and  witnesses  are  not  to  usurp  the  functions  of  the  jury. 
The  object  of  the  testimony  of  experts,  or  opinion  evidence, 
is  to  enlighten  the  jury  who,  nevertheless,  are  not  bound 
by  the  expert  opinions  given. 

Physicians  who  have  attended  the  accused,  during  his 
illness,  may  testify  as  to  relevant  facts  observed,  and  where 
the  alleged  insanity  is  of  a  hereditary  type,  persons  who 
have  knowledge  of  the  notorious  insanity  of  near  blood 
relatives  of  the  accused  are  competent  witnesses.  Persons, 
moreover,  who  have  knowledge  of  the  acts  or  conduct  of  the 
accused,  who  have  associated  with  him  and  have  had 
opportunities  for  judging  his  mental  condition,  may  be  per- 
mitted to  give  their  opinions  of  his  sanity  or  insanity, 
stating  as  a  basis  for  such  opinions  the  facts  or  reasons  for 
the  same. 

§  61.  Reading  from  Medical  Works.  As  to  the  reading 
from  standard  medical  works,  either  for  the  purpose  of  evi- 
dence or  in  the  course  of  argument,  although  this  is  allowed 
in  some  jurisdictions,  nevertheless,  the  prevailing  rule  is 
that  all  such  readings  are  inadmissible,  since  they  are  not 
opinions  under  oath  and  are  not  subjected  to  the  test  of 
cross-examination. 

§  62.    Insanity  at  Trial,    A  person  cannot  be  tried,  sen- 


MEDICAL  JURISPRUDENCE  43 

tenced,  or  punished  while  he  is  insane.  The  question  in 
such  cases  is  not  the  responsibility  or  irresponsibility  of 
the  accused,  but  whether  he  has  sufficient  mental  capacity 
to  conduct  a  rational  defense.  The  investigation  of  this 
question  is  entirely  apart  from  the  issue  of  guilt  or  inno- 
cence of  the  defendant,  and  is  generally  tried  by  a  jury 
or  commission  specially  summoned.  The  common-law  pro- 
cedure may  be  modified  by  the  statutes  of  the  particular 
state. 

§63.  Civil  Incapacity  of  Insane.  Insanity  has  also  a 
very  important  bearing  upon  the  legality  or  binding  force 
of  juristic  acts.  With  relation  to  contracts,  the  old  rule 
was  that  an  insane  person  had  no  contractual  capacity  at 
all,  but  the  modern,  general  rule  is  that  the  contracts  of 
an  insane  person  are  voidable  and  not  void.  By  this  rule, 
an  insane  person  who  is  incapable  of  knowing  what  he  is 
doing  may  avoid  his  liability,  although  some  jurisdictions, 
applying  the  old  rule,  hold  his  contracts  absolutely  void. 
Some  States  apply  the  doctrine  of  voidable  contracts  only 
where  insanity  has  'not  been  previously  judicially  deter- 
mined, and  hold  that  his  contracts  after  lunacy  is  estab- 
lished are  void.  A  lunatic  is  bound,  however,  for  neces- 
saries, although  such  obligation  does  not  lie  in  contract 
but  rather  in  quasi-contract. 

As  to  testamentary  capacity,  the  weight  of  authority  holds 
that  one  may  make  a  valid  will  though  his  mental  capacity 
is  less  than  would  be  required  to  make  a  contract  or  deed. 
In  the  case  of  gifts  by  insane  persons,  the  same  capacity 
is  required  as  for  contracts  or  deeds. 

In  Marriage  and  Divorce.  Insanity  at  time  of  mar- 
riage renders  the  marriage  void,  by  general  rule,  although 
some  jurisdictions  hold  that  it  makes  marriage  only  void- 
able. In  some  States,  incurable  insanity  is  also  a  ground 
for  divorce. 

In  Torts.  Although  not  punishable  for  criminal  acts, 
nevertheless,  an  insane  person  is  liable  in  a  suit  for  dam- 
ages for  his  torts.  This  rule,  however,  has  been  held  not  to 
apply  to  torts  in  which  malice  is  an  essential  element.  Ac- 


44 

cordingly,  slanderous  words  spoken  by  the  insane  have 
been  held  to  inflict  no  legal  damage. 

As  Witnesses.  Whether  or  not  a  person  afflicted  with 
insanity  is  a  competent  witness  depends  upon  the  degree 
of  his  mental  unsoundness.  If  he  possesses  such  under- 
standing as  enables  him  to  remember  and  to  give  a  correct 
account  of  things  he  has  witnessed,  and  also  to  appreciate 
the  binding  force  of  an  oath,  he  may  be  permitted  to  testify. 


EXAMINATION  PAPER 


MEDICAL  JURISPRUDENCE 


Read  Carefully:  Place  your  name  and  full  address  at  the  head  of  the 
paper.  Any  cheap,  light  paper  like  the  sample  previously  sent  you  may  be 
used.  Do  not  crowd  your  work,  but  arrange  it  neatly  and  legibly.  Do  not 
copy  the  answers  from  the  Instruction  Paper;  use  your  own  words,  so  that  ire 
may  be  sure  you  understand  the  subject. 


1.  Explain  what  is  meant  by  "medical  jurisprudence". 

2.  When  in  the  trial  of  a  case  of  homicide  it  becomes  impor- 
tant to  establish  the  fact  that  death  occurred  within  ten  hours  of 
a  certain  time,  what  evidence,  pro  and  con,  as  to  the  condition  of  the 
body  would  be  material? 

3.  How  can  it  be  determined  whether  certain  blood  stains  are 
caused  by  human  blood  or  not? 

4.  B  is  arrested  on  suspicion  of  having  murdered,  by  stab- 
bing with  a  knife,  a  certain  woman.    The  victim  wore  at  the  time 
of  the  murder  a  fur  coat  through  which  the  knife  passed.    A  knife 
was  found  upon  the  person  of  the  arrested  man,  and  on  the  blade 
were  blood  stains  and  some  hairs.     B  says  he  killed  a  dog  with  this 
knife.    Discuss  the  possible  medical  evidence. 

5.  How  are  poisons  classified? 

6.  A  died  suddenly.    The  family  had  the  body  cremated. 
Some  weeks  after,  an  insurance  company  refused  to  pay  a  policy 
upon  his  life,  charging  that  he  died  of  arsenical  poison,  the  charge 
being  based  upon  A's  symptoms  during  his  final  illness.    State 
what  such  symptoms  would  usually  be,  and  also  state  by  what  dis- 
eases they  might  be  simulated. 

7.  What  is  meant  by  a  "blank-test"  in  the  chemical  analysis 
of  poisons? 

8.  A  widow  gave  birth  to  a  child  on  Nov.  27,  1911,  her  hus- 
band having  died  Feb.  1,  1911.    Discuss  the  child's  legitimacy,  and 
state  whether  the  law  presumes  it  to  be  a  legitimate  child. 

9.  A  was  separated  from  his  wife  for  several  years.     He 
returned  to  his  home  on  Jan.  1,  1911.     On  June  15,  1911,  his  wife 


MEDICAL  JURISPRUDENCE 

gave  birth  to  a  viable  child.    Is  it  possible  that  A  could  have  been 
the  father?    Why? 

10.  On  June  1,  1911,  A  and  B  were  married.    A  few  days 
later,  A,  by  some  accident,  became  incurably  impotent.    Discuss 
its  effect  as  a  ground  for  annulment  of  the  marriage,  and  also  as  a 
ground  for  divorce. 

11.  What  was  the  purpose  of  a  "jury  of  matrons"  in  connec- 
tion with  the  former  practice  at  common  law? 

12.  Is  "abortion"  necessarily  a  crime?    Explain  your  answer. 

13.  A   statute   provides  that  the   intentional   and   unlawful 
causing  or  procuring  the  premature  delivery  of  a  woman  "quick  with 
child"  shall  be  punished  as  a  felony.    In  a  prosecution,  under  this 
statute,  the  evidence  showed  the  unlawful  delivery  of  a  foetus  three 
months  old.    Can  the  defendant  be  convicted?    Why? 

14.  Suppose,  in  the  above  case,  the  mother  had  died  from  the 
result  of  the  unlawful  operation.    Of  what  crime,  if  any,  at  common 
law,  would  the  wrongdoer  be  guilty? 

15.  In  a  prosecution  for  infanticide,  what  must  be  established 
in  order  to  prove  the  felonious  killing  of  a  "human  being"? 

16.  A  is  found  dead  with  a  knife  projecting  from  a  wound  in 
his  breast.    What  medical  evidence  would  support  or  refute  the 
theory  that  the  knife  was  thrust  into  the  body  after  death? 

17.  In  defending  a  client  for  alleged  murder,  you  contend  that 
the  wound,  which  was  a  gun  shot  wound,  was  self-inflicted.    What 
evidence  relating  to   the  nature  of   wounds  would  uphold  your 
theory? 

18.  State  some  important  facts  of  vision  with  reference  to  the 
distance  at  which  a  person's  features  can  be  identified. 

19.  A  has  B  arrested  for  an  assault.     A  testifies  that  the 
assault  was  committed  on  a  dark  night  in  a  dark  place,  but  when  he 
was  struck  heavily  between  the  eyes  he  recognized  B  as  his  assail- 
ant by  means  of  flashes  of  light  in  his  eyes  caused  by  the  blow.    Is 
this  reliable  evidence? 

20.  Where  several  persons  perish  in  a  common  disaster,  what 
is  the  presumption,  if  any,  of  the  order  of  their  death?    That  is, 
which  is  presumed  to  have  died  first? 

21.  Explain  the  "right  and  wrong  test"  in  connection  with  the 
defense  of  insanity  in  a  criminal  prosecution. 


MEDICAL  JURISPRUDENCE 

22.  What  is  the  "irresistible  impulse"  test  as  'distinguished 
from  the  "right  and  wrong  test"  of  the  preceding  question? 

23.  How  has  an  "insane  delusion"  been  defined? 

24.  Distinguish  between  illusions  and  hallucinations. 

25.  If  a  person  under  an  insane  delusion  as  to  existing  facts 
commits  an  offense  in  consequence  thereof,  is  he  thereby  excused? 
Why? 

26.  If  one  under  the  hypnotic  control  of  another  commits  an 
offense,  has  he  a  legal  defense  for  his  act?    State  the  defense. 

27.  In  connection  with  the  defense  of  insanity  what  is  meant 
by  hypothetical  questions? 

28.  What  is  the  rule  as  to  reading  from  standard  medical 
works  when  counsel  is  summing  up  a  case  for  the  jury? 

29.  If  one  becomes  insane  during  his  trial  for  alleged  crime, 
what  effect  has  it  upon  the  trial?    What  effect  upon  his  responsi- 
bility for  the  offense? 

30.  An  insane  person  commits  a  tort.    Can  he  be  held  liable 
in  a  suit  for  damages?    Give  reason  for  your  answer. 

After  completing  the  work,  add  and  sign  the  following  statement: 
I  hereby  certify  that  the  above  work  is  entirely  my  own. 

(Signed) 


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